IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 8TH JULY 2008 / 17TH ASHADHA 1930 RSA.No. 578 of 2008 ----------------------- AS.26/2001 of ADDL. DISTRICT COURT, THALASSERY OS.332/1996 of ADL.SUB COURT, THALASSERY .................... APPELLANTS/ APPELLANTS/ PLAINTIFF ------------------------------------------- 1. M.MOHAMMED, S/O.MOIDEEN KOYA HAJI, 58 YEARS, BUSINESS, "SANTHOSH", NEW MAHE, KODIYERI AMSOM, PERINGADI DESOM, THALASSERY TALUK. 2. M.C.MOHAMMED JALEEL, S/O.MOHAMMED, AGED 35 YEARS, KODIYERI AMSOM, PERINGADI DESOM, POWER OF ATTORNYE HOLDER IST RESPONDENT M.MOHAMMED. 3. M.C.JAZEER AHAMMED, S/O.MOHAMMED, AGED 32 YEARS, BUSINESS, KODIYERI AMSOM, PERINGADI DESOM, THALASSERY TALUK. 4. P.K.MOHAMMED HASSAL, S/O.HYDER HAJI, AGED 28 YEARS, BUSINESS, "RYHAN MANZIL", POST CORAKAM, MALAPPURAM DISTRICT. 5. P.K.MOHAMMED ASHRAF, S/O.HYDER HAJI, AGED 32 YEARS, BUSINESS "RYHAN MANZIL", POST CORAKAM, MALAPPURAM DISTRICT. 6. TABZIM MOHAMMED ASHRAF, S.O.MOHAMMED, AGED 19 YEARS, BUSINESS "WINNY", 30/161, POST MEDICAL COLLEGE, KOZHIKODE DISTRICT. 7. M.A.ABDUL RASHEED, S/O.KUNHAMMED, AGED 33 YEARS, BUSINESS, PUTHANPARAMBIL HOUSE, REHMANIA BUILDING, PANAYIKULAM, ALWAYE, ERNAKULAM DISTRICT. BY ADV. SRI.C.KHALID SRI.T.P.SAJID RESPONDENTS: RESPONDENTS/ DEFENDANTS --------------------------------------------------- C.O.T.JALALUDHEEN @ ABDUL JALEEL, S/O.MOIDU, AGED 31 YEARS, BUSINESS, "NJAS", KANNUR AMSOM DESOM, BY POWER OF ATTORNEY HOLDER K.M.NIZAR, S/O.KOYA, AGED 33 YEARS, BUSINESS, KHADEEJA MANZIL, MALANVEEDU ROAD, KANNUR. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J. ---------------------------------------------------- C.M. Application No 482 of 2008 and R.S.A. No 578 of 2008 ---------------------------------------------------- Dated this the 8th July 2008 JUDGMENT This is an application for condonation of delay of 169 days in filing the second appeal. Judgment under appeal was pronounced on 22.08.2007. Copy thereof was applied for on 24.08.2007. Stamp papers called for on 01.10.2007 were produced on 03.10.2007 and copy was taken delivery of on 17.10.2007. But the appeal was filed only on 02.07.2008. 2. In the affidavit filed by the first appellant in support of the application the averments are that he was conducting the suit and the appeal in the courts below on behalf of other appellants as well, that the suit is for realisation of Rs 1,50,000/- which was paid as advance for a truck load of tiles promised to be supplied by the respondents, that the first respondent has committed breach of the agreement and breach of trust by refusing to supply the tiles or to RSA 578/08 2 refund the advance amount, that they did not receive any communication from their counsel Sri P.K. Mohan Nambiar or from his clerk that the first appeal was dismissed; that it is only when they approached the counsel on 17.06.2008 that they were shocked to know that the appeal has been dismissed as early as on 22.- 08.2007, that the appeal which ought to have been filed on 17.01.2008 could therefore be filed only on 02.07.2008 with the delay of 169 days in filing the Second Appeal and that the said delay is not wilful or deliberate and the delay has therefore to be condoned. 3. It is worthy to note that copy of the judgment appealed against was received on 17.10.2007 without any serious fault on the part of the counsel or the clerk in applying for copy and producing stamp papers. According to the first appellant, only when they contacted their lawyer on 17.06.2008 that they came to know of the dismissal of the appeal on 22.08.2007 and that copy of the judgment has been got and was kept along with the records of the suit. Counsel for the appellant and his clerk admittedly have acted promptly as they were expected to do in the circumstances and without any lapse on their part they had obtained copy of the judgment from the court below. When the counsel and his clerk RSA 578/08 3 were found to be prompt in conducting the case it is not at all likely that they would not have informed the appellants of the fact of appeal having been disposed of on 22.08.2007 and copy of judgment having been received on 17.10.2007. 4. The affidavit is sworn to by the first appellant behind the back of the counsel who was appearing for the appellants in the court below as also his clerk. I cannot but in the circumstances disbelieve the averments made by the first appellant in the affidavit that the appellants were not informed by their counsel or the clerk of the counsel who was appearing in the court below as regards the disposal of the appeal and regarding receipt of a copy of judgment for preferring the Regular Second Appeal. By making such allegations against the lawyer and his clerk behind their back the appellants cannot urge that the delay of 169 days in filing the Second Appeal be condoned. Such bald averments do not justify condonation of delay of as much as 169 days so as to interfere with the valid rights that have accrued to the successful parties/the respondents by reason of non filing of the appeal in time. There is no just and sufficient cause to condone the delay of 169 days in filing the Second Appeal. In the result, refusing to condone the delay of as RSA 578/08 4 much as 169 days in filing the Second Appeal, I dismiss this C.M. Application. Consequently R.S.A also stands dismissed. Sd/- K.P. BALACHANDRAN Judge 08/07/2008 en [true copy]