IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 111 of 2007()
1. DR.JUSTINE, S/O.VARGHESE,
... Petitioner
Vs
1. GOURI, W/O.GOVINDAN,
... Respondent
2. MOHINI, D/O.GOVINDAN, DO. DO.
3. LEELA, W/O.MADHAVAN,
For Petitioner :SRI.MATHEW JOHN (K)
For Respondent :SRI.V.M.KRISHNAKUMAR
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :27/05/2008
O R D E R
K.P. Balachandran, J.
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C.M.Appl.No.68 of 2007 &
R.S.A.No.111 of 2007
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JUDGMENT
Advocate Sri.Parthasarathy, on behalf of the
counsel for the appellant, prays for adjournment of
the case. I see no reason why adjournment is to be
granted for the purpose of consideration of C.M.
Appl.No.68/07, wherein, the prayer is for
condonation of delay of 212 days in filing the
appeal. Counsel for the respondents also is absent.
Perused the records.
2. The judgment under appeal was passed on
13.3.2006. Copy application was made on 20.6.2006,
only after more than three months. Copy was
delivered on 10.10.2006, but the appeal is filed
only on 19.1.2007.
3. In the affidavit filed by the wife and
Power of Attorney holder of the appellant, the
averments are that when the appeal was heard by the
lower appellate counsel, her counsel had told her
RSA 111/07 2
that on pronouncement of the judgment, he would
intimate the same to her and also would
simultaneously make arrangements to apply for a
certified copy of the judgment; that since she did
not get any communication from the office of her
counsel in the court below till third week of June
2006, she went over to the office of her counsel in
the court below and made enquiries and only then,
it was noted that the judgment was pronounced in
March 2006 itself and application for certified
copy of the judgment was not made; that immediately
she made arrangements to apply for certified copy
of the judgment; that copy of the judgment was
ready and 1.7.2006 was fixed as the date to take
delivery of the judgment, but, it was taken
delivery of only on 10.10.2006, after more than
three months, as the Clerk did not take note of the
date fixed by the Registry to appear and receive
the certified copy of the judgment; that when she
approached her counsel before this Court, on
perusing the records, pointed out that certified
copy of the judgment in A.S.No.105/05 alone was
RSA 111/07 3
there among the records handed over to him and
certified copy of the judgment in A.S.No.104/05 is
also necessary to enable him to proceed with the
matter and she was, therefore, constrained to make
another copy application for certified copy of the
judgment, but during the second week of January
2007, her counsel intimated her that certified copy
of the judgment in A.S.No.104/05 was already in the
records handed over to him by her and he
inadvertently thought that the certified copy of
the judgment in A.S.No.104/05 was not there in the
records handed over to him and that the present
appeal is immediately thereafter filed before this
Court on 19.1.2007.
4. Though the judgment under appeal is one in
A.S.No.105/05, the judgment is a common judgment in
A.S.Nos.104/05 and 105/05. No sensible Lawyer would
advise the party to get another copy of the
judgment in A.S.No.104/05 to file appeal against
the judgment and decree in A.S.No.105/05. No
Lawyer appearing before this Court owes the
responsibility for having given such an advice and
RSA 111/07 4
no affidavit is filed. As regards the fault on the
part of the Lawyer in the court below, the
allegations are made against him behind his back
and no affidavit is filed by him supporting the
case of the appellant. Allegations are also made
against the Clerk of the Lawyer in the court below,
and that also is made behind his back. The party,
who is negligent in the matter of prosecuting his
case cannot, by making such allegations, seek to
have condoned the delay of as much as 212 days in
filing the appeal, so as to disturb and upset the
rights that have accrued to the successful
parties/respondents, by filing appeal much out of
time. There is no just and sufficient cause to
condone the delay of as much as 212 days in filing
the appeal.
This application is, hence, dismissed.
Consequently, the Regular Second Appeal also stands
dismissed.
27th May, 2008 (K.P.Balachandran, Judge)
tkv