IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 23RD MAY 2008 / 2ND JYAISHTA 1930 RSA.No.463 of 2003 ( ) --------------------------- AS.417/1992 of D.C & SESSIONS COURT,TRIVANDRUM OS.1403/1990 of I ADDL.M.C.,NEYYATTINKARA .................... APPELLANTS:APPELLANTS/DEFENDANTS ------------------------------------------------ 1. SUKUMARA PANICKER SUKESAN, RESIDING AT KUNUMMAL VEEDU, AVADUTHURA DESOM, VIZHINJAM VILLAGE, NEYYATTINKARA TALUK. 2. SUKUMARA PANICKER SURENDRAN, RESIDING AT DO.DO. 3. SUKUMARA PANICKER, SURESH, RESIDING AT DO.DO. DO. BY ADV. SRI.L.MOHANAN ADV. SRI.D.SAJEEV RESPONDENTS: ADDL. RESPONDENTS/ADDL. PLAINTIFFS ------------------------------------------------------------------- 1. UNIKRISHNAN NAIR, S/O. KRISHNA PILLAI, THEKKE VEEDU, AVADUTHURA DESOM, VIZHINJAM VILLAGE, NEYYATTINKARA TALUK. 2. RAJAMMA D/O. DEVAKI AMMA, OF DO.DO. 3. APPUKUTTAN NAIR, S/O. KRISHNA PILLAI, DO.DO. 4. VASANTHAKUMARI D/O. DEVAKI AMMA, OF DO. DO. 5. GIRIJA D/O. DEVAKI AMMA, OF DO. DO. RSA.No.463 of 2003 -2- 6. GOPINATHAN NAIR S/O. KRISHNA PILLAI, OF DO. DO. 7. KESAVANKUTTY NAIR S/O. KRISHNA PILLAI, OF DO.DO. BY ADV. SRI.R.RAJESH KORMATH FOR R6 SRI.D.SAJEEV SRI.G.SREEKUMAR (CHELUR) FOR R1 TO 7 SMT.SANJANA R.NAIR FOR R6 SMT.PREETHY KARUNAKARAN FOR R1 TO 7 SMT.M.M.DEEPA FOR R1 TO 7 SRI.K.RAVI (PARIYARATH) FOR R1 TO 7 SRI.JAYKAR.K.S. FOR R1 TO 7 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ C. M. Appl. No.40 of 2003 & R. S. A. No.463 of 2003 ------------------------------------------------ Dated this the 23rd day of May, 2008 JUDGMENT This is an application for condonation of delay of 337 days in filing the R.S.A. The judgment assailed in the R.S.A was passed on 19/07/01. Copy application was made after more than one year on 10/09/02 and thereafter copy was received on 08/11/02 though the date fixed to receive copy was on 03/11/02. In the affidavit filed by the first appellant in support of the application for condonation of delay, it is averred that the appeal ought to have been filed on or before 17/10/01, but the appeal is filed only on 12/12/02 after more than one year. But still it is stated that the delay is of 337 days only. However, the exact delay does not require to be calculated as even the delay of 337 days is an unreasonable delay which but for existence of just and R. S. A. No.463 of 2003 -2- reasonable cause cannot be condoned. 2. The averments in the affidavit filed by the first appellant explaining the delay are that he had not been informed from the advocate's office regarding the disposal of the appeal by the lower appellate court and the appellants were therefore, under the impression that the appeal is still pending and that when he enquired the counsel in the court below, he informed that he had sent a card intimating the dismissal of the appeal but he has not filed any copy application for getting the judgment and therefore, on 09/09/02, he made arrangements to apply for a copy of the judgment and it was thus that copy application was made on 10/09/02. This means at least from 19/07/01, the day on which the appeal was disposed of by the court below till 09/09/02 namely for more than one year the appellants have not made any enquiry at all with their counsel as regards their appeal R. S. A. No.463 of 2003 -3- which was pending in the lower appellate court. The appeal that was so pending was one of 1992. The further averment in the affidavit is that though the judgment was received on 08/11/02, he could collect the copy of judgment only on 06/12/02 viz. nearly about one month thereafter and the reason assigned is that he was laid up due to high degree of astma and hypertension and he made arrangement with the counsel at Ernakulam to file appeal on 09/12/02 and the appeal was filed on 12/12/02. It is worthy to note that the appeal is one filed against verdicts concurrently passed against the appellants and this appeal which is now more than four and a half years old is pending on the file of this Court even without any order being obtained on the C.M. Application on account of the lack of interest shown in the matter of conduct of this case. It is also worthy to note that petitioners 2 and 3 who are appellants 2 and 3 are also R. S. A. No.463 of 2003 -4- persons who could have looked after the case as they are all brothers of the petitioner/ first appellant and nobody has shown any interest to make any enquiry about their case or regarding the disposal of the case by the first appellate court and that has paved the way for delay of as much as 337 days being caused in filing the appeal. I see absolutely no reason or just and sufficient cause to condone the delay of 337 days in filing the appeal. 3. In the result, refusing to condone the delay of as much as 337 days in filing the appeal, I dismiss this C.M. Application. Consequently, the appeal also stands dismissed. K.P.BALACHANDRAN, JUDGE kns/-