IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 22ND MAY 2008 / 1ST JYAISHTA 1930 RSA.No.374 of 2008 ( ) --------------------------- AS.47/2004 of DISTRICT COURT, PATHANAMTHITTA OS.500/1998 of MUSNIFF COURT, ADOOR .................... APPELLANTS/APPELLANTS 1 AND 2/PLAINTIFFS 1 AND 2 -------------------------------------------------------------------- 1. RAMA KURUP, S/O.RAGHAVA KURUP, MALAYUDE VADAKETHIL, KURUMPALA THEKUMURI, KURUMPALA VILLAGE, KOCHALUVILA VADAKETHIL PADUKOTTUKAL, PANDALAM THEKKEKARA VILLAGE, ADOOR TALUK. 2. RAJASEKHARA KURUP, S/O.RAGHAVA KURUP, PADUKOTTUKAL MURI, KURUMPALA VILLAGE, KOCHALUVILA VADAKETHIL PADUKOTTUKAL, PANDALAM THEKKEKARA VILLAGE, ADOOR TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR) RESPONDENTS/RESPONDENTS/DEFENDANTS ----------------------------------------------------- 1. MARYKUTTY DANIEL, D/O.ANNAMMA MATHAI, KANJIRAVILAYIL, PADUKOTTUKAL MURI, PANDALAM THEKKEKARA VILLAGE, ADOOR TALUK. 2. ANNAMMA MATHAI, W/O.MATHAI, KANJIRAVILAYIL, PADUKOTTUKAL MURI, PANDALAM THEKKEKARA VILLAGE, ADOOR TALUK. 3. OMANAYAMMA, KOYIPURATHU VEEDU, ANGADICKAL VILLAGE, ADOOR TALUK. 4. SARASAMMA, KOCHALUVILA VADAKETHIL, PADUKOTTUKAL MURI, PANDALAM THEKEKARA VILLAGE, ADOOR TALUK. 5. INDIRA, PULIKULATH VEEDU, PADUKOTTUKAL MURI, PANDALAM THEKEKARA VILLAGE, ADOOR TALUK. RSA.No.374 of 2008 -2- BY THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ C. M. Appl. No.311 of 2008 & R. S. A. No.374 of 2008 ------------------------------------------------ Dated this the 22nd day of May, 2008 JUDGMENT This is an application for condonation of delay of as many as 304 days in filing the R.S.A. The judgment of the first appellate court in A.S.47/04 assailed in this appeal was passed on 03/02/07. Copy of judgment was applied for on 07/02/07, stamp papers were called for on 09/03/07 and were produced on 13/03/07; copy was ready on 16/03/07 and date fixed to appear to receive copy was on 20/03/07 and the copy was received only on 30/03/07. The R.S.A is thereafter filed on 10/04/08 along with this C.M. Application seeking for condonation of delay of 304 days. 2. The C.M. Application is supported by the affidavit filed by the first appellant. The stand taken by him in the affidavit is R. S. A. No.374 of 2008 -2- that he was not informed of the hearing of the appeal which was pending in the lower appellate court from 2004 onwards; that his counsel had informed him that he would be informed of the date of hearing when the appeal is ripe for hearing, but that his advocate did not inform him of the proceedings. He further alleges that though he made enquiry on several occasions, it was informed that the judgment in the case was not delivered and that finally on 27/02/08 he received a post card from the lawyer's clerk intimating him of the disposal of the appeal and that though in the post card so received reference is made to various previous letters issued to him, but he had not actually received those letters and he was not aware of the judgment and decree passed by the court below and therefore, he could not make arrangements to file appeal and in the R. S. A. No.374 of 2008 -3- circumstances, the delay of 304 days has to be condoned. Photostat copy of the post card stated to have been received with date 27/02/08 is also produced. It is addressed to the first appellant. He has no case that the address in the post card is not his correct and complete address or that letters addressed similarly in that address would not be delivered to him. In the letter, the clerk of the lawyer informs him that the appeal is dismissed and that for preferring appeal before the High Court he has to reach the lawyer's office immediately and that after receipt of copy of judgment, several times card had been sent and telephone calls were made, but no reply was received. Despite receipt of letter dt.27/02/08, this R.S.A is filed only on 10/04/08 which shows the lethargic way in which the matter was dealt with by the appellants. If at all the clerk of R. S. A. No.374 of 2008 -4- the lawyer had sent several cards after receipt of copy of judgment that must have been issued in the very same address in which the post card, photostat copy of which is produced also was sent and there is no reason why the appellant did not receive those cards but only the post card dt.27/02/08. The appellant is making an attempt to accuse the lawyer in the court below and the lawyer's clerk, behind their back seeking to have the delay condoned relying on the letter issued by the clerk on 27/02/08. It cannot be forgotten that the said letter itself accuses the appellant for not turning up despite several cards sent to him. I am not prepared to accept the case of the appellant that he was not aware of the judgment passed by the lower appellate court on 03/02/07 for more than one year of delivery of judgment and almost one year after receipt of copy of judgment of the R. S. A. No.374 of 2008 -5- lower appellate court. It appears that the post card, photostat copy of which is produced itself is procured for the purpose of filing this appeal seeking for condonation of delay. The circumstances reveal that the appellants never made any enquiry about their case in the court below for the last more than one year and there is no justification or just and sufficient cause to condone the delay in such cases especially when delay is as much as 304 days so as to affect the rights of the respondents in whose favour there is concurrent decree passed by the courts below. In the circumstances, I dismiss this C.M. Application. Consequently, the R.S.A also stands dismissed. K.P.BALACHANDRAN, JUDGE kns/-