IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 2ND JUNE 2008 / 12TH JYAISHTA 1930 RSA.No.246 of 2005 (D) ---------------------------- AS.248/2001 of DISTRICT COURT, PALAKKAD OS.931/1999 of MUNSIFF COURT, PALAKKAD .................... APPELLANT/RESPONDENT/PLAINTIFF: ---------------------------------------------- S. BALASUBRAMANIAN, S/O. SANKARA UDAYAR, RESIDING AT NARIKKOTTIL UDAYAR LANE, CHANDRANAGAR, MARUTHARODE, PALAKKAD. BY ADV. SRI.V.CHITAMBARESH SRI.T.C.SURESH MENON SRI.SREEKANTH.K.R SMT.M.R.VALSA SRI.LEJU T.BALAN RESPONDENT: APPELLANT/DEFENDANT: ------------------------------------------------ M.C. SATHISH, S/O. RAMACHANDRAN NAIR, RESIDING AT PALLATHERI, PALAKKAD. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ C. M. Application No.180 of 2005 & R. S. A. No.246 of 2005 ------------------------------------------------ Dated this the 2nd day of June, 2008 JUDGMENT This is an application seeking condonation of delay of 59 days in filing the R.S.A. The judgment impugned was passed on 23/06/04 and the certified copy which was ready for delivery on 07/08/04 was taken delivery of only on 21/08/04 and the appeal is filed only on 03/01/05. In the affidavit filed explaining the delay the appellant has averred that the second appeal ought to have been filed on or before 02/11/04, but is filed with a delay of 59 days and that according to him, it appears to be for reason of non-receipt of letter issued from the office of his counsel regarding receipt of certified copy of judgment and decree. He has sworn that it was only when accidentally he met his counsel R. S. A. No.246 of 2005 -2- during Christmas holidays that he was told that letter had been sent regarding receipt of certified copy of decree and judgment. There is absolutely no material to show that the counsel of the appellant who was appearing in the court below or his clerk had issued any letter to the appellant which was not received by him and was lost in transit. Neither the counsel nor the clerk has filed any affidavit swearing to those aspects. Further, the matter of communication between lawyer and client is not something of which the respondent is to be concerned. It is for the party to make vigilant enquiries with respect to his case and the party who cannot file an appeal within the time allowed which cannot be stated to be not sufficient for filing an appeal, cannot seek for condonation of delay of as much as 59 days in filing the R.S.A when by non-filing of the appeal in time rights have accrued to the R. S. A. No.246 of 2005 -3- respondent and that cannot lightly be disturbed on the appellant assigning some such flimsy reason. I am not of the view that the delay of as much as 59 days can be condoned on the reasons alleged which according to me, is not just or sufficient to condone the said delay. In the result, refusing to condone the delay of 59 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/-