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. 601 of 2006 --------------------------------- AS.186/2001 of SUB COURT,THODUPUZHA OS.218/1979 of MUNSIFF COURT,THODUPUZHA .................... APPELLANT/(APPELLANT - DEFENDANT): C.M. MANI, S/O. POTHAN, CHACKUNGAL HOUSE, THODUPUZHA EAST P.O., THODUPUZHA, IDUKKI DISTRICT PIN-685 585. BY ADV. SMT.PREETHY KARUNAKARAN SMT.MEENA.A. SMT.M.R.MINI SRI.JAYKAR.K.S. RESPONDENT/(RESPONDENT - PLAINTIFF): RACHEL P., D/O. ABRAHAM, PACHIKKARA HOUSE, THODUPUZHA EAST P.O., THODUPUZHA, IDUKKI DISTRICT, PIN-685 585. 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.447 of 2006 & R.S.A.No.601 of 2006 --------------------------- JUDGMENT Despite opportunities given, the appellant has not been able to effect service of notice on the respondent. However, I see no reason why notice has to be repeated as the application seeking for condonation of delay of 641 days in filing the appeal deserves dismissal without notice. The judgment under appeal was pronounced on 23.6.2004. Copy application was made only on 19.7.2004. Copy was delivered on 18.8.2004 and this appeal is filed only on 26.7.2006, after almost two years. 2. The reasons stated in the affidavit filed by the appellant in support of the application for condonation of delay are that the second appeal ought to have been filed on or before 22.10.2004, but could be filed only with a delay of 641 days; that the delay occasioned is not wilful; that he had come over to Ernakulam on 15.9.2004 and RSA 601/06 2 entrusted the certified copy of the judgment and decree and connected papers with his counsel; that he is a cardiac patient, having other related problems since 1989; that due to inadvertent omission, his counsel did not file the second appeal in time and in January 2005, he ceased to practice as a Lawyer and that since he was not well and was suffering from acute blood pressure, diabetes and cardiac problems, he omitted to follow up the matter; that he is the respondent in S.A. No.679/00 and that when he made enquiries over telephone with the juniors of his former counsel, who were under the impression that his enquiry was with regard to S.A.No.679/00, informed him that the appeal is pending; that on 22.7.2006 he came over to Ernakulam for the purpose of health check up and went over to the office of the counsel at Ernakulam and after thorough search, it was noticed that the second appeal was not prepared and filed; that the records were traced out on that day itself and he RSA 601/06 3 was asked to come over to Ernakulam on 24.7.2006 for the purpose of preparing the petition to condone the delay and it is accordingly that this appeal is filed with petition to condone the delay of as much as 641 days. 3. It is worthy to note that in the first instance, he is accusing his counsel on the ground that due to an inadvertent omission, his counsel did not file the second appeal in time. This is sworn to behind the back of his counsel. There is no affidavit of the counsel concerned. The further allegation is that when he made enquiries with the juniors of his former counsel they were under the impression that his enquiry was with regard to S.A. No.679/00 and informed him that the appeal is pending. It is not for the appellant to swear that the juniors of his former counsel were telling him of an appeal that had been pending from 2000 onwards, when the judgment under appeal was pronounced only in 2004. No affidavit of the RSA 601/06 4 junior counsel, who gave him such an information also is filed. All these reasons, in my opinion, are cooked up to some how have the delay of 641 days being condoned. I am not of the view that such flimsy unconvincing reasons, which, however, highlight also the wanton neglect on the part of the appellant in prosecuting his case, furnish just and sufficient cause to have the delay of as much as 641 days in filing the appeal being condoned to the risk of the respondent, to whom, valuable rights have accrued consequent on a decree obtained in his favour having become final. In the result, refusing to condone the delay of as much as 641 days in filing the appeal, I dismiss this application. Consequently, the Regular Second Appeal also stands dismissed. 27th May, 2008 (K.P.Balachandran, Judge) tkv