IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 803 of 2006()
1. OMANA AMMA, D/O. KUNJUKUTTY AMMA,
... Petitioner
Vs
1. THULASI AMMA, D/O. MANIAMMA,
... Respondent
2. SASIDHARAN NAIR, MUKKANNER HOUSE,
3. BALAN NAIR, MUKKANNER HOUSE,
4. BALACHANDRAN NAIR, MUKKANNER HOUSE,
For Petitioner :SRI.M.NARENDRA KUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :12/03/2009
O R D E R
K.P. Balachandran, J.
--------------------------
R.S.A.No.803 of 2006 &
C.M.Appl.No.574 of 2006
--------------------------
JUDGMENT
C.M.Appl.No.574/2006
Heard counsel for the appellant. This is an
application seeking condonation of delay of 597
days in filing the Regular Second Appeal. The
judgment under appeal was pronounced on 12.7.2004.
Copy was applied for after eight days, namely, on
21.7.2004. The stamp papers called for on
28.10.2004 were produced only on 1.11.2004, after
three days. Though 4.11.2004 was fixed as the date
to appear and receive the copy, copy was taken
delivery of only on 9.11.2004. This Regular Second
Appeal is filed only as late as on 11.9.2006, after
one year and ten months.
2. In the affidavit filed by the appellant in
support of the C.M. Application, the reason
assigned for the delay is that she did not receive
any intimation regarding receipt of copy of
judgment, though copy was taken delivery of on
RSA 803/06 2
9.11.2004 and only in the first week of August 2006
when she went to the office of the counsel, on
verification, that it was found that certified copy
of the judgment was obtained as early as on
9.11.2004. She further alleges that the clerk
attached to the office of her counsel, who was
dealing with the case, was dismissed from service
long back. There is no mention in the affidavit as
to who was the clerk dealing with the case and was
dismissed from the office of the Lawyer. There is
no supporting evidence from the Lawyer that any
negligence in the matter has occurred at his office
or that he has dismissed any clerk, who was dealing
with the case in the lower appellate court. Such
bald allegations cannot furnish sufficient cause to
have the delay of as much as 597 days in filing the
Regular Second Appeal condoned so as to disrupt the
verdict obtained by the respondents in their
favour, which has become final.
3. From the averments in the affidavit, it is
also evident that the appellant was not making any
RSA 803/06 3
enquiries about her case for about two years. It
is not for the counsel to go in search of the
client and intimate the client as to what she has
to do in the matter. Appellant has to make
enquiries with the Lawyer at least during
reasonable intervals so that such instances will
not occur. In the instant case, there is no
sufficient reason at all to condone the delay of as
much as 597 days in filing the Regular Second
Appeal.
In the result, I dismiss this C.M. Application.
R.S.A.No.803/2006
C.M.Appl.No.574/06 seeking for condonation of
delay of as much as 597 days in filing this Regular
Second Appeal is dismissed. Consequently, this
Regular Second Appeal is hopelessly barred by
limitation and is dismissed.
12th March, 2009 (K.P.Balachandran, Judge)
tkv