IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 30TH JUNE 2008 / 9TH ASHADHA 1930 RSA.No.526 of 2008 (D) ---------------------------- AS.236/2005 of DISTRICT COURT, KOZHIKODE CS.39/2003 of SUB COURT, KOYILANDY .................... APPELLANT/APPELLANT/DEFENDANT --------------------------------------------- T.K.KUNHIRAMAN, S/O. CHATHU, THAVITTANGARATH KUNIYIL HOUSE, VYKKILASSERY AMSOM, KURIKKILAD DESOM, VADAKARA TALUK. BY ADV. SRI.CIBI THOMAS RESPONDENT/RESPONDENT/PLAINTIFF ----------------------------------------------- P.P.RAJAN, S/O. THEYYAN, KUNNUMMAL MEETHAL HOUSE, CHERUVANNUR VILLAGE, AVALA P.O., KOYILANDY TALUK. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 30/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ C. M. Application No.440 of 2008 & R. S. A. No.526 of 2008 ------------------------------------------------ Dated this the 30th day of June, 2008 JUDGMENT This is an application filed by the appellant seeking condonation of delay of 224 days in filing the appeal. The judgment under appeal was pronounced by the first appellate court on 13/10/06. Copy thereof was applied for on 27/10/06. Stamp papers called for on 23/12/06 were produced only on 01/01/07 and copy was taken delivery of only on 28/09/07 though date fixed to appear to receive copy was on 23/05/07. In the affidavit filed by the appellant, it is stated that even though copy was taken delivery of on 28/09/07 that was not intimated to him and he was under the impression that the appeal was pending and when he made enquiries at the counsel's office during January, 2008, he was informed that the R. S. A. No.526 of 2008 -2- appeal was dismissed on 13/10/06. He further submits that according to the clerk he sent a letter to him but however, that he did not receive the said letter and was therefore unaware of the disposal of the appeal and that on getting copy, he immediately approached the lawyer in the High Court and filed the appeal. 2. The appeal was dismissed as early as on 13/10/06. Even on the averments in the affidavit of the appellant, he made enquiries about his case going over to the office of his counsel only during January, 2008. This means that for more than one year and three months, he had not turned up to make any enquiries about the case to the counsel who was appearing for him in the court below. A party cannot expect that his counsel or his clerk will go over to his office and furnish details about the case. It is up to him to make enquiries with his lawyer regarding the R. S. A. No.526 of 2008 -3- position of the case. Even assuming that what he says is correct, it is only a case where the clerk has sent a letter to him, but he has not received it. Such instances may happen occasionally, but as an ordinary prudent man, he should be aware of all that and should have made enquiries with his counsel at least at reasonable intervals. On the other hand, what we see here is the case of a client who has not made any enquiry about his case for more than one year and three months either in person or at least over telephone. Such wanton neglect in the matter of conduct of the case resulting in delay of as much as 224 days in filing the appeal cannot be condoned to the detriment of the successful party to whom rights have accrued consequent on non-filing of the appeal by the appellant in time. There is no just and sufficient cause to condone the delay of as much as 224 days in filing the R. S. A. No.526 of 2008 -4- R.S.A. 3. In the result, refusing to condone the delay of as much as 224 days in filing the R.S.A, I dismiss this C.M. Application. Consequently, the R.S.A also stands dismissed. K.P.BALACHANDRAN, JUDGE kns/-