IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 8TH JULY 2008 / 17TH ASHADHA 1930 RSA.No. 81 of 2008 -------------------- AS.70/2004 of SUB COURT, KASARAGOD OS.129/2002 of PRL.MUNSIFF, KASARAGOD .................... APPELLANTS: RESPONDENTS/DEFENDANTS: ---------------------------------------- 1. ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL, MAJOR SECTION, UDUMA, 2. ASSISTANT ENGINEER ELECTRICAL MAJOR SECTION, UDUMA. 3. THE DEPUTY CHIEF ENGINEER, ELECTRICAL CIRCLE OFFICE, KASARAGOD. 4. THE SECRETARY, K.S.E.BOARD, THIRUVANANTHAPURAM. BY ADV. SRI. ASOK M.CHERIYAN, SC, KSEB RESPONDENT: APPELLANT/PLAINTIFF: ------------------------------------------ B.M.RAMAKRISHNA, AGED 51 YEARS, S/O.MALOJI RAS, AGRICULTURIST, HINDU, RESIDING AT BEDIKKUNDAM HOUSE, POST KUNDAMKUZHY, BEDADKA VILLAGE VIA, CHENGALA, KASARAGOD TALUK, KASARAGOD. BY ADV. SRI.D.KRISHNA PRASAD SMT.O.K.SANTHA THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J. --------------------------------------------------- C.M. Application No 66 of 2008 and R.S.A. No 81 of 2008 --------------------------------------------------- Dated this the 8th July 2008 JUDGMENT This is an application filed by the appellants in the Regular Second Appeal seeking for condonation of delay of 215 days in filing the appeal. Judgment appealed against was pronounced on 27.02.2007. Copy thereof was applied for on 01.03.2007. Stamp papers called for on 14.03.2007 were produced on 16.03.2007 and copy was taken delivery of on 24.03.2007, viz., on the date fixed to appear to receive copy. Thus till the receipt of copy of judgment there cannot be said to be any fault on the part of the appellants or their lawyer. 2. In the affidavit filed by the Assistant Executive Engineer attached to the office of the Standing Counsel for the K.S.E. Board in support of the application for condonation of delay the explanation for the delay is that Standing Counsel for the K.S.E.Board at Kanhangad sent a copy of judgment appealed against received on 24.03.2007 with his legal opinion to the Secretary of the K.S.E. Board at RSA 81/08 2 Trivandrum. The date on which it was so sent and it was received by the K.S.E. Board is not made mention of. It is further stated that the decree being for payment of amount, the matter was examined in detail in consultation with the Legal Advisor and the Disciplinary and Enquiry Officer of the K.S.E. Board and the Legal Advisor with his observation forwarded the decree and judgment to the Secretary of the K.S.E. Board. Here also the date on which the Legal Advisor was consulted, the date on which the Legal Advisor made his observation and the date on which it was sent by the Legal Advisor to the Secretary of the Board are not mentioned. The further allegation is that thereafter the same was sent to the Executive Engineer, Electrical Division, Kasargode with sanction order dated 08.06.2007 for filing appeal and after receipt of the said sanction order the case bundle along with the Board order according sanction to file appeal was received in the office of the deponent on 15.06.2007 and the same was handed over to the counsel for the K.S.E. Board appearing before this court. It is the further case of the deponent that after handing over the records to the Standing Counsel before this court the case bundle was misplaced in the office of the Standing Counsel and the same was traced out only on 18.01.2008 RSA 81/08 3 and it is thereafter the counsel prepared the appeal memorandum and presented it before court on 23.01.2008. The deponent is not a competent person to swear that after entrustment of the file with the Standing Counsel on 15.06.2007 it was misplaced in the office of the Standing Counsel and was traced out only on 18.01.2008. 3. It is worthy to note that more than seven months have lapsed in between handing over of the file to the Standing Counsel and the date on which it is stated to have been traced out at the office of the Standing Counsel. This means that no enquiry at all was made by the concerned officials of the Board dealing with the matters as to what happened to the appeal entrusted with the lawyer. If at all enquiry has been so made they could have come to understand that the file is missing and could have taken steps for the file being traced out for which certainly so much time was not necessary. However, the Senior Counsel does not own the responsibility and he has not filed any affidavit swearing that the file was misplaced in his office. In the circumstances there is no just and sufficient cause for condonation of delay of as much as 215 days in filing the Regular Second Appeal and the averments made on hearsay information by the deponent in his affidavit filed in support of the application for RSA 81/08 4 condonation of delay cannot be given any weight so as to be accepted as explanation offered for the delay. It is also to be borne in mind that the successful parties to whom rights have accrued consequent on not filing of the appeal by the appellants in time are not to be disturbed unless there is valid, just and sufficient cause to receive the appeal condoning the delay. Such circumstances are absent in the instant case. In the result, refusing to condone the delay of as much as 215 days in filing the appeal I dismiss this C.M. Application. Consequently the Regular Second appeal also stands dismissed. Sd/- K.P. BALACHANDRAN Judge 08/07/2008 en [true copy]