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. 269 of 2005(F) ------------------------------------- AS.9/1996 of II ADDL. DISTRICT COURT, PALAKKAD OS.571/1994 of PRL.MUNSIFF COURT, PALAKKAD .................... APPLICANTS/APPELLANTS/DEFENDANTS: 1. THE DISTRICT COLLECTOR, PALAKKAD REPRESENTING THE STATE OF KERALA. 2. THE CUSTODIAN AND EX-OFFICIO SPECIAL SECRETARY (AGRICULTURE) OF FOREST, KOZHIKODE. 3. THE DIVISIONAL FOREST OFFICER, OLAVAKKODE P.O., PALAKKAD. BY GOVERNMENT PLEADER SRI.PRAKASH.M.P. RESPONDENTS/RESPONDENTS/PLAINTIFFS: 1. MURUKAN, 2. VASU, 3. KRISHNAN (CHILDREN OF THILLA, MOOCHIKKAL HOUSE, PANNIYAMPADAM, VALLIKKODE, PALAKKAD.) BY ADV. SRI.VINOD KUMAR.C. FOR R3 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- C.M.Appl.No.194 of 2005 & R.S.A.No.269 of 2005 --------------------------- JUDGMENT This is an application seeking for condonation of delay of as much as 609 days in filing the Regular Second Appeal. The judgment under appeal was pronounced on 18.10.2002. Copy thereof was applied for only 23.10.2002. Stamp papers called for on 26.11.2002 were produced only on 29.11.2002. Copy was taken delivery of only on 9.12.2002, though the date fixed to appear and receive the copy was 5.12.2002. 2. In the affidavit filed by the Olavacode forest Range Officer in support of the application for condonation of delay, he has stated that copy of the judgment was delivered to the Office of the Divisional Forest Officer on 9.12.2002 and that the District Government Pleader opined that there was no scope for appeal and hence under the bona fide belief that no appeal need be filed, the concerned RSA 269/05 2 Official closed the file. He does not say who is the concerned official. Probably, the Divisional Forest Officer must be the concerned official. Any way, the deponent is not the concerned official. Hence, he is not entitled to swear an affidavit swearing that the file was closed by the concerned officer under the bona fide belief that no appeal need be filed. He further swears that the Conservator of Forests, Olavacode Circle happened to go through the file and found that interest of the State was not sufficiently safeguarded and that judgment is liable to be appealed against and that therefore, the Conservator of Forests requested the Advocate General to examine the scope of an appeal on 5.9.2003. Even by that time, the time to prefer appeal had already expired. The Advocate General does not say anything in the matter. The deponent further swears that, however, in November 2003, the Special Government Pleader (Forests) resigned. In between the resignation of the Special Government RSA 269/05 3 Pleader (Forests) and the date on which the file was submitted to the Advocate General for examining the scope of appeal on 5.9.2003, obviously, there was a delay of two months. There is no explanation as to why no progress at all was made during the said two months in the matter of filing the appeal. The further averment is that the new Special Government Pleader (Forests) took charge only on 16.3.2004. It was up to the appellants to appoint a substitute when the Special Government Pleader resigns or cause alternate arrangement being made for conduct of cases. Nothing was done and there was no explanation for the same. The further averment in the affidavit is that again a request was made to the Advocate General for a second opinion on 21.6.2004, i.e., more than three months after a new Special Government Pleader (Forests) took charge. It is the further statement in the affidavit that thereafter a letter was issued from the Office of the Advocate General calling for RSA 269/05 4 certified copies of the judgment and decree of the trial court and that was on 3.9.2004, almost after 2½ months of request having been made to the Advocate General for a second opinion on 21.6.2004. Copy application for the certified copies of judgment and decree of the trial court is stated to have been made on 16.10.2004 and received on 17.11.2004. But, still, the Government Pleader could prepare and file appeal only on 21.1.2005 due to pendency of heavy work and that is also is not stated by the Government Pleader, but by the deponent of the affidavit, who is a Forest Range Officer. 3. The averments in the affidavit would itself go to show that there was callous neglect on the part of the Government and its officials to prosecute their case properly. Consequence of such callous neglect in the matter of conduct of litigation has to be suffered by the appellants themselves and not by the respondents and the RSA 269/05 5 rights that have accrued to the respondents by reason of the decision in their favour cannot be lightly interfered with when the appellants approach this Court seeking condonation of delay of as much 609 days in filing the appeal and the reasons assigned are also not just and sufficient cause to condone the delay. In the above view, refusing to condone the delay of as much as 609 days in filing the appeal, I dismiss this C.M. application. Consequently, the Regular Second Appeal also stands dismissed. 8th July, 2008 (K.P.Balachandran, Judge) tkv