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. 130 of 2007 --------------------------------- AS.149/2001 of PRINCIPAL SUB COURT,PARAVUR OS.236/1996 of MUNSIFF COURT, PERUMBAVOOR .................... APPELLANTS/RESPONDENTS/PLAINTIFFS: 1. JOSEPH, S/O.THOMAS, POONOLIL HOUSE CHERANALLOOR KARA, KOOVAPPADY VILLAGE, KUNNATHUNADU TALUK. 2. CHACKO, S/O.THOMA, DO. DO. 3. KATHREENA, D/O.THOMAS, DO. DO. BY ADV. SRI.RAJESH VIJAYAN RESPONDENT/APPELLANT/DEFENDANT: VAREETH, S/O.VAREETH, POONOLIL HOUSE, CHERANALLOOR KARA, KOOVAPPADY VILLAGE, KUNNATHUNADU TALUK. BY ADV. SRI.ALEXANDER JOSEPH(CAVEATOR) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- C.M.Appl.No.82 of 2007 & R.S.A.No.130 of 2007 --------------------------- JUDGMENT This is an application for condonation of delay of 102 days in filing the appeal. Though the judgment impugned was passed by the lower appellate court on 5.4.2006, copy was applied for only on 20.6.2006. Copy was ready for delivery and the date fixed to appear and receive the copy was 30.9.2006. But, it was taken delivery of only on 7.10.2006. Still, the appeal was filed only on 24.1.2007. 2. The reasons stated, explaining the delay, in the affidavit filed by the first appellant in support of the application are to the following effect: “When the file was entrusted with the counsel of these petitioners/ appellants it is noted that several documents including the copy of the decree was found RSA 130/07 2 missing. Subsequently, it was noted that such documents were misplaced in the file of the learned counsel appeared for the petitioners/appellants before the lower appellate court. Though these petitioners/appellants tried to recover that documents from the office of the counsel, who appeared for the petitioners/ appellants, because of serious illness of the learned counsel, it could not recovered. Thereafter, in the first week of January, the learned counsel, who appeared for the petitioners/appellants before the lower appellate court passed away. With great difficulty, now, the records have been recovered. Therefore, it took delay of 102 days in filing the Second Appeal. If the delay is not condoned, it will cause irreparable loss and injury to the petitioners/ appellants.” RSA 130/07 3 3. Though the first appellant swears that several documents, including copy of the decree, were missing and that was noticed by the counsel before this Court and it was noted that those documents were misplaced in the file of the counsel, who was appearing in the lower appellate court, no affidavit is filed either by the counsel, who is appearing before this Court or by the counsel, who was appearing for the petitioners/ appellants in the lower appellate court. The further statement that though the documents were tried to be recovered from the office of the counsel, who appeared for the petitioners/ appellants in the lower appellate court, it could not be recovered because of the serious illness of the counsel. There is, absolutely, no material to establish this averment either. It is also alleged that the counsel, who appeared for the petitioners/ appellants in the court below, passed away in the first week of January, for which also there is no RSA 130/07 4 evidence. There is no mention as to who was the counsel who was so laid up due to illness and who so passed away. It is further alleged that with great difficulty the records have now been recovered. The date on which it was so recovered is not made mention of. 4. It is worthy to note that even if a Lawyer is laid up, there will be other juniors in his office or at least the Clerk of the Lawyer and with their assistance, the file can be got traced out. If at all the petitioners/appellants could trace out the file after the death of the counsel, there was absolutely no difficulty in tracing out the records when the counsel was laid up due to illness. In my view, these are all allegations made as a ruse to have the delay condoned some how or the other. I do not see any just and sufficient cause in the reasons offered to condone the delay of as much as 102 days in filing the appeal, so as to disrupt the rights that have accrued to the RSA 130/07 5 successful party for reason of non filing of the appeal within time and that right cannot, lightly, be disturbed showing leniency to the petitioners/ appellants. In the result, refusing to condone the delay of 102 days in filing this appeal, I dismiss the C.M. Application. Consequently, the Regular Second Appeal also stands dismissed. 6th June, 2008 (K.P.Balachandran, Judge) tkv