IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 27TH MAY 2008 / 6TH JYAISHTA 1930 RSA.No. 111 of 2007 --------------------------------- AS.105/2005 of ADDL. DISTRICT COURT, N.PARAVUR OS.769/1998 of MUNSIFF COURT, N.PARAVUR .................... APPELLANT/IST RESPONDENT/PLAINTIFF: DR.JUSTINE, S/O.VARGHESE, MALIEKKAL, KUZHUPPILLY MURI AND VILLAGE, KOCHI TALUK REP. BY HIS DULY CONSTITUTED POWER OF ATTORNEY JANCY ANTONY, W/O.ANTONY, KATTIKARAN, ERNAKULAM. BY ADV. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B. RESPONDENTS/APPELLANTS/DEFENDANTS: 1. GOURI, W/O.GOVINDAN, VELIYATHU HOUSE, KUZHUPPILLY KARA & VILLAGE, KOCHI TALUK. 2. MOHINI, D/O.GOVINDAN, DO. DO. 3. LEELA, W/O.MADHAVAN, DO. DO. BY ADV. SRI.V.M.KRISHNAKUMAR FOR R1,2 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 27/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- C.M.Appl.No.68 of 2007 & R.S.A.No.111 of 2007 --------------------------- JUDGMENT Advocate Sri.Parthasarathy, on behalf of the counsel for the appellant, prays for adjournment of the case. I see no reason why adjournment is to be granted for the purpose of consideration of C.M. Appl.No.68/07, wherein, the prayer is for condonation of delay of 212 days in filing the appeal. Counsel for the respondents also is absent. Perused the records. 2. The judgment under appeal was passed on 13.3.2006. Copy application was made on 20.6.2006, only after more than three months. Copy was delivered on 10.10.2006, but the appeal is filed only on 19.1.2007. 3. In the affidavit filed by the wife and Power of Attorney holder of the appellant, the averments are that when the appeal was heard by the lower appellate counsel, her counsel had told her RSA 111/07 2 that on pronouncement of the judgment, he would intimate the same to her and also would simultaneously make arrangements to apply for a certified copy of the judgment; that since she did not get any communication from the office of her counsel in the court below till third week of June 2006, she went over to the office of her counsel in the court below and made enquiries and only then, it was noted that the judgment was pronounced in March 2006 itself and application for certified copy of the judgment was not made; that immediately she made arrangements to apply for certified copy of the judgment; that copy of the judgment was ready and 1.7.2006 was fixed as the date to take delivery of the judgment, but, it was taken delivery of only on 10.10.2006, after more than three months, as the Clerk did not take note of the date fixed by the Registry to appear and receive the certified copy of the judgment; that when she approached her counsel before this Court, on perusing the records, pointed out that certified copy of the judgment in A.S.No.105/05 alone was RSA 111/07 3 there among the records handed over to him and certified copy of the judgment in A.S.No.104/05 is also necessary to enable him to proceed with the matter and she was, therefore, constrained to make another copy application for certified copy of the judgment, but during the second week of January 2007, her counsel intimated her that certified copy of the judgment in A.S.No.104/05 was already in the records handed over to him by her and he inadvertently thought that the certified copy of the judgment in A.S.No.104/05 was not there in the records handed over to him and that the present appeal is immediately thereafter filed before this Court on 19.1.2007. 4. Though the judgment under appeal is one in A.S.No.105/05, the judgment is a common judgment in A.S.Nos.104/05 and 105/05. No sensible Lawyer would advise the party to get another copy of the judgment in A.S.No.104/05 to file appeal against the judgment and decree in A.S.No.105/05. No Lawyer appearing before this Court owes the responsibility for having given such an advice and RSA 111/07 4 no affidavit is filed. As regards the fault on the part of the Lawyer in the court below, the allegations are made against him behind his back and no affidavit is filed by him supporting the case of the appellant. Allegations are also made against the Clerk of the Lawyer in the court below, and that also is made behind his back. The party, who is negligent in the matter of prosecuting his case cannot, by making such allegations, seek to have condoned the delay of as much as 212 days in filing the appeal, so as to disturb and upset the rights that have accrued to the successful parties/respondents, by filing appeal much out of time. There is no just and sufficient cause to condone the delay of as much as 212 days in filing the appeal. This application is, hence, dismissed. Consequently, the Regular Second Appeal also stands dismissed. 27th May, 2008 (K.P.Balachandran, Judge) tkv