IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 5TH JUNE 2008 / 15TH JYAISHTA 1930 RSA.No.464 of 2008 ( ) --------------------------- A.S.130/99 OF ADDL. DISTRICT COURT, NORTH PARUR O.S.430/95 OF MUNSIFF COURT, PARAVUR ................... APPELLANT/APPELLANT/PLAINTIFF:- ------------------------------------------- JOHN, AGED 66 YEARS, S/O VARGHESE, ERALIL, AYYAMPILLY KARA, KUZHUPILLY VILLAGE, KOCHI TALUK. BY ADV. SRI.A.X.VARGHESE SRI.A.V.JOJO RESPONDENT: RESPONDENT/DEFENDANT:- ------------------------------------------------- SANDALAL, AGED 66 YEARS, S/O MATTU, AKKARAKARAN VEETTIL, AYYAMPILLY KARA, KUZHUPILLY VILLAGE, KOCHI TALUK. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ C. M. Application No.389 of 2008 & R. S. A. No.464 of 2008 ------------------------------------------------ Dated this the 5th day of June, 2008 JUDGMENT This is an application filed by the appellant for condonation of delay of 1836 days in filing the R.S.A. The judgment under appeal was delivered on 22/11/02 and copy of the judgment was applied for on 13/12/02 and though 20/01/03 was fixed as the date for receiving copy, copy was taken delivery of only on 28/01/03 and the appeal is filed only on 11/04/08. 2. In the affidavit filed by the appellant in support of the C.M. Application, his case is that while A.S.130/99 was pending before the Additional District Court, North Parur whenever he asked his lawyer about the appeal he gave information that the appeal is pending and that even though the appeal was R. S. A. No.464 of 2008 -2- dismissed by the lower appellate court on 22/11/02, counsel informed him that appeal is pending before the Additional District Court, North Parur and that only when the petitioner received copy of execution petition viz. E.P.333/07 in O.S.430/95 that he came to know that appeal is dismissed by the lower appellate court on 22/11/02; and that immediately, he got relinquished the vakalath from his counsel vide Annexure-A1 letter and in the circumstances, it so happened that there is delay of 1836 days in filing the appeal. 3. It is worthy to note that the date on which the appellant was served with notice in E.P.333/07 is not mentioned at all. The appellant who has produced Annexure-A1 relinquishment letter from his lawyer has not cared to produce notice in execution received by him so as to enable this Court to R. S. A. No.464 of 2008 -3- understand as to when it was received by him. Though it is the case of the appellant that his counsel used to tell him that the appeal is pending in lower appellate court even when it has already been dismissed, it is to be noted that the appeal is one of the year 1999. The appellant does not say as to on which all dates he made enquiries. It is highly improbable in the normal course of events that the counsel who has applied for and obtained copy of judgment will not intimate the party of receipt of the copy of judgment so as to enable him to file an appeal. Further, the appellant has no case that he has filed any complaint against his lawyer before the Bar Council or before any other authority especially when his case is that he was being mislead by his lawyer saying that an appeal which was dismissed as early as in 2002 was pending till April, 2008. The affidavit is R. S. A. No.464 of 2008 -4- sworn to by the appellant behind the back of his lawyer. For all the above reasons, I am not prepared to believe the averments made by the appellant in the affidavit as regards the cause for the delay. There is no just and sufficient cause in the circumstances to condone the delay of as much as 1836 (One thousand eight hundred and thirty six) days in filing the R.S.A. 4. In the result, I dismiss this C.M. Application. Consequently, the R.S.A also stands dismissed. K.P.BALACHANDRAN, JUDGE kns/-