IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 4TH APRIL 2008 / 15TH CHAITHRA 1930 RSA.No. 1039 of 2005() ---------------------- AS.62/2002 of DISTRICT COURT,TRIVANDRUM OS.216/1998 of III ADDL.MUNSIFF COURT.,TRIVANDRUM .................... APPELLANTS: APPELLANTS/PLAINTIFFS -------------------------------------- 1. RAJAMMA, D/O.PADMAKSHI, THUMBARA MELE VEEDU, PANANGODE, VENGANOOR VILLAGE, THIRUVANANTHAPURAM. 2. SUDARSANAN, S/O.KUTTAN, DO.DO. 3. SIVANKUTTY, S/O.KUTTAN, OF DO.DO. 4. THULASEEDHARAN, S/O.KUTTAN, OF DO. 5. SASIDHARAN, S/O.KUTTAN, OF DO. 6. VENU, S/O.KUTTAN, DO.DO. 7. SATHEESH KUMAR, S/O.KUTTAN, DO.DO. 8. CHELLAPPAN, S/O.CHETHAN, OF DO. 9. SYAMALA, D/O.SARADA OF DO.DO. BY ADV. SRI.M.R.ANANDAKUTTAN SRI.B.SATHIQ SRI.R.S.MADHU SRI.MAHESH ANANDAKUTTAN RESPONDENTS: RESPONDENTS/DEFENDANTS -------------------------------------------------- 1. RAJENDRAN NAIR, THUNDUVILAKATHU VEEDU, ARASUMMOODU, ANAYARA, KADAKOMPALLY VILLAGE, THIRUVANANTHAPURAM. 2. SUKUMARAN NAIR, S/O.DAMODHARAN, PAZHAVINAVILAKOM VEEDU, SICILIPURAM, VENGANOOR VILLAGE, THIRUVANANTHAPURAM. 3. RAJASEKHARAN NAIR, S/O.DAMODHARAN, OF DO DO. BY ADV. SRI.S.D.ASOKAN(CAVEATOR) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04/04/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. NO. 1039 OF 2005 =========================== Dated this the 4th day of April, 2008 JUDGMENT The appeal is filed against the judgment in A.S.62/2002 on the file of District Court, Thiruvananthapuram dismissing the first appeal after dismissing the application filed under section 5 of the Limitation Act. First appeal was filed against the judgment dated 22.10.1999 in O.S.216/1998 on the file of Munsiff Court,Thiruvananthapuram. The appeal was filed after a delay of 389 days. Petition was filed to condone the said delay on the ground that after judgment was pronounced, appellants were not informed by the counsel or the clerk the result and therefore delay was caused. Learned District Judge rightly found that it is not a sufficient ground. 2. On behalf of appellants Pws.1 to 3 were examined on 6.10.99 and 8.10.99. The suit was R.S.A.1039/2005 2 dismissed on 22.10.99. Appellants cannot be heard to contend that they kept quiet without enquiring with the counsel as to the result of the suit for more than one year. Even if their case that they were informed by the clerk of the counsel that result of the suit will be intimated, the gross negligence in not contacting the counsel to know the result and also to take steps to file the appeal for more than one year cannot be condoned. In such circumstance, I do not find any reason to interfere with the findings of first appellate court that delay cannot be condoned for the reasons stated in the petition. Appeal is dismissed. Learned counsel appearing for appellants then submitted that dismissal of the suit may not prevent appellants from instituting a fresh suit based on a subsequent cause of action. That is a question to be decided when a later suit is instituted. M.SASIDHARAN NAMBIAR JUDGE tpl/- R.S.A.1039/2005 3 M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006