IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 13TH JUNE 2008 / 23RD JYAISHTA 1930 RSA.No. 55 of 2008 ------------------------------- AS.190/2004 of II ADDL.DISTRICT COURT, ERNAKULAM OS.184/2001 of II ADDL.M.C., ERNAKULAM .................... APPELLANT/APPELLANT/DEFENDANT: SMT.MRIDULA SATHEESAN,W/O.K.SATHEESAN, HOUSEWIFE, LAKSHMI NIVAS, THEKKEACHAN VEETIL, S.R.M.ROAD, KOCHI-18. BY ADV. SRI.G.SREEKUMAR (CHELUR) SMT.PREETHY KARUNAKARAN SMT.M.M.DEEPA SRI.JAYKAR.K.S. SRI.K.RAVI (PARIYARATH) RESPONDENT/RESPONDENT/PLAINTIFF: SHAJI, S/O.HASSAN RAWTHER, OONJALIPARAMBIL, KOLIKKADAVU, CHERIYANAD VILLAGE, PRESENT ADDRESS HRS COMPLEX, S.R.M.ROAD, ERNAKULAM, KCOHI-18. BY ADV. SRI.KKM.SHERIF SRI.LAL K.JOSEPH SRI.A.A.ZIYAD RAHMAN SMT.SHEENA SAMUEL THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- C.M.Appl.No.50 of 2008 & R.S.A.No.56 of 2008 & C.M.Appl.No.49 of 2008 & R.S.A.No.55 of 2008 --------------------------- JUDGMENT The C.M. Applications are filed by the petitioner/appellant, who is common in both these appeals, seeking for condonation of delay of 220 days each in filing the appeal. These appeals arise from a common judgment passed in A.S.Nos. 189/04 and 190/04 by the District Judge, Ernakulam. The said common judgment was delivered on 5.1.2007. The copy was applied for on 9.1.2007. With two days delay, the stamp papers called for were produced. The copy was taken delivery of on 15.3.2007, but the appeals are filed only on 15.1.2008. 2. Going by the averments in the affidavits filed in support of the delay condonation applications, the appeals ought to have been filed on or before 14.5.2007, but could be filed only on RSA 55 & 56/08 2 14.1.2008 with a delay of 220 days, the reasons for which are stated in paragraph 5 of the affidavits. It is as follows: “I submit that I have entrusted the file to the counsel during the month of 2007. However, it is learnt that the files were misplaced in the office of my counsel. The files were traced only on 11.1.2008. It was so happened that my files have been tied up along with another file. In spite of strenuous effort the file was traced out only on 11.1.2008. I swear that there is no wilful delay or negligence on my part. I have serious contentions in the above matter. I will be put to irreparable injury if the delay is not condoned.” Paragraph 5 in the affidavits also is common. According to the appellant, she entrusted the files RSA 55 & 56/08 3 to the counsel “during the month of 2007”. There is no mention as to during which month. She has further stated that the files were misplaced in the office of her counsel and the files could be traced out only on 11.1.2008, as it happened that the files had been tied up along with another file and despite strenuous efforts, the files were traced out only on 11.1.2008. These are not matters on which the appellant is having direct knowledge. Her knowledge regarding misplacement along with another file and the efforts made to trace out the files in the office of her counsel are only on hearsay. The counsel does not own the responsibility for this negligence that has taken place in his office, if at all that is a fact. There is no affidavit of either the Clerk or the counsel in this matter. If the records of a case, in which an appeal has to be filed, are misplaced along with some other files and is not even attempted to be traced out and it took 220 days to RSA 55 & 56/08 4 trace it out, I cannot, but, say that it is height of irresponsibility that has occurred in the office of the Lawyer. It is strange that the appellant has been made to wear such an affidavit. During arguments, the counsel for the appellant also made a statement that the office of the Lawyer was shifted and that was how the files were misplaced. If at all that was the truth, that also could have been stated in the affidavit. I fail to understand why if such shifting of office was there, that should not be made mention of in the affidavit as that is a circumstance which must. certainly, be stated in the affidavit that accompanies a petition to condone the delay. In the circumstances, I am not prepared to believe that the delay has occasioned for the reasons stated. It is only a ruse to get the inordinate delay of 220 days condoned. Accepting such bald averments in an affidavit and condoning the delay favouring the petitioner/appellant will certainly work out RSA 55 & 56/08 5 injustice to the respondent, who was successful in the court below. Rights have accrued to him by reason of non filing of appeal in time by the petitioner/appellant. The said right cannot, lightly, be disturbed on such allegations made, as a ruse to have the delay condoned. There is no just and sufficient cause to condone the delay, in the circumstances. In the result, refusing to condone the delay of 220 days in filing R.S.A.Nos.55/08 and 56/08, I dismiss both the C.M. applications. Consequently, both the Regular Second Appeals also stand dismissed. 13th June, 2008 (K.P.Balachandran, Judge) tkv