IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 6TH JUNE 2008 / 16TH JYAISHTA 1930 RSA.No. 1101 of 2007() ---------------------- AS.61/1994 of ADDL.SUB COURT,KOTTAYAM OS.631/1989 of ADDL.M.C.,KOTTAYAM .................... APPELLANT/IST RESPONDENT/PLAINTIFF: T.T.THOMAS,S/O.THOMAS,KOLLAMPARAMBIL, VALIYANGADY KARA,KOTTAYAM VILLAGE. BY ADV. SRI.P.I.GEORGEKUTTY RESPONDENTS: 1. POTHEN VARGHESE @ BABY, S/O. VARKEY, KUNNUMPURATH VEEDU,VALIYANGADY KARA, KOTTAYAM VILLAGE (DIED). 2. PHILIP MATHEW,AGED ABOUT 52, S/O.MATHEW OF -DO- -DO- 3. MARIAMMA VARGHESE,D/O.LATE POTHEN VARKEY KUNNUMPURATH VEEDU,VALIYANGADY KARA, KOTTAYAM VILLAGE. 4. K.V.RAJU,S/O.LATE POTHEN VARKEY, KUNNUMPURATH VEEDU,VALIYANGADY KARA, KOTTAYAM VILLAGE. 5. K.V.GEORGE KUTTY,S/O.LATE POTHEN VARKEY, KUNNUMPURATH VEEDU,VALIYANGADY KARA, KOTTAYAM VILLAGE. 6. LEELAMMA VARGHESE,D/O.LATE POTHEN VARKEY KUNNUMPURATH VEEDU,VALIYANGADY KARA, KOTTAYAM VILLAGE. 7. SHANIAMMA VARGHESE,D/O.LATE POTHEN VARKEY,KUNNUMPURATH VEEDU,VALIYANGADY KARA, KOTTAYAM VILLAGE. 8. KOTTAYAM MUNICIPALITY,REPRESENTED BY THE MUNICIPAL COMMISSIONER,KOTTAYAM. 9. STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR,KOTTAYAM. BY ADV. SRI.K.JAYAKUMAR - R5 SMT.GEETHA P.MENON - R2 TO 7 SRI.NAVEEN.T - R8 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J ------------------------------ C.M. Appl. No. 829 of 2007 and R.S.A. No. 1101 of 2007 ------------------------------ Dated this the 6th day of June, 2008 JUDGMENT This is an application for condonation of delay of 1058 days in filing the R.S.A. The judgment of the first appellate court, which is assailed in this RSA, was delivered on 24/11/2003. Copy of the judgment was applied for on 28/11/2003. The date fixed to appear and receive the copy was on 25/02/2004, but the copy was taken delivery of only on 6/03/2004 and the appeal is filed only on 13/04/2007. 2. In the affidavit filed by the counsel for the appellant in support of application for condonation of delay, the reasons stated explaining the delay are that he was attached to the office of Adv. Abraham Mathew at Pullepady; that during April 2004 the appellant entrusted the file with him for filing appeal by the reopening day after the holidays; that the appeal ought to have been filed on 22/05/2004; that he prepared the appeal and entrusted the same to his clerk one Abhilash, in order to file the appeal on re-opening day; R.S.A. No. 1101/ 2007 Page numbers that later the said Abhilash left his office when he obtained job in a company; that during the summer holidays, the office to which he was attached was shifted to Kombara; that on 11/3/2007, Advocate Shri C.B. Sreekumar who was one of his collegaues in his earlier office informed him that he has got some of his files, while he was searching some documents of his clients, from the disposed of case bundles; that he could find that the judgment and relevant records of this case were among the files so recovered by Shri. C.B. Sreekumar; that it was only then he could realise that the appeal, which was entrusted with clerk, had not been filed; that he was under the bonafide impression that the appeal had been filed on the re- opening day itself; that only now he could understand that the appeal had not been filed; that the appellant was also under the belief that the appeal has been filed and would be taken up for hearing in the normal course and that there is no wilful omission or laches on his part in not filing the appeal without delay. 3. I am at loss to understand as to who is at fault if the appellant's counsel is not responsible for the delay. It is worthy to note that the counsel for the appellants did not make any enquiry as R.S.A. No. 1101/ 2007 Page numbers regards the appeal entrusted with the clerk for being filed, from the re-opening day of the courts in April 2004 till the case file could be located in April 2007. Without knowing as to whether the appeal is filed or not, he must have given information to the parties that the appeal is filed as otherwise the appellant would not have been under the impression that the appeal has been filed. It is strange that it did not alert the lawyer even when the appeal did not come up for admission despite lapse of several months and years. This shows the irresponsible manner in which the cases are being dealt with in the office of the counsel. It was up to the counsel to watch and get satisfied himself that the appeal he had entrusted with his clerk is actually filed and not to be at the mercy of the clerk, when clients entrusted files with him for filing appeals. Further, it is seen that the counsel who has filed the affidavit has cleverly avoided making mention of date on which clerk Abhilash left their office obtaining job in a company. It could be in 2004, 2005, 2006 or 2007. On such irresponsible explanations and excuses I am not inclined to condone the delay of as much as 1058 days in filing the appeal. It is to be borne in mind that the successful party is not expected to wait for R.S.A. No. 1101/ 2007 Page numbers such a long time to ascertain if an appeal is filed or not . Further, rights have accrued to the successful party by non-filing of appeal by the affected party and that right cannot be lightly disturbed on appeal being filed with such delay in such irresponsible manner. There is no just and sufficient cause to condone the delay. 4. In the result, refusing to condone the delay of 1058 days in filing the appeal, I dismiss this C.M. Application. Consequently, Regular Second Appeal also stands dismissed. K.P. BALACHANDRAN, JUDGE scm