Kerala High Court
Sheeja vs K.G.Sasi Rekha on 16 July, 2021
THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
FRIDAY, THE 16TH DAY OF JULY 2021 / 25TH ASHADHA, 1943
RFA NO. 180 OF 2020
AGAINST THE DECREE AND JUDGMENT IN OS 78/2011 OF SUB COURT,
NEDUMANGAD, THIRUVANANTHAPURAM DATED 27/08/2014
APPELLANTS/DEFENDANTS:
1 SHEEJA,
W/O.LATE R.CHANDRAMOHAN, MELA PERINGALODU
VEEDU,VENCODE P.O., VATTAPPARA, THIRUVANATHAPURAM
2 NIMMI,
D/O.LATE R.CHANDRAMOHAN, MELA PERINGALODU
VEEDU,VENCODE P.O., VATTAPPARA, THIRUVANATHAPURAM,
MINOR, REPRESENTED BY HER MOTHER AND NATURAL
GUARDIAN, SMT.SHEEJA
3 NIZZI,
D/O.LATE R.CHANDRAMOHAN, MELA PERINGALODU
VEEDU,VENCODE P.O., VATTAPPARA, THIRUVANATHAPURAM,
MINOR, REPRESENTED BY HER MOTHER AND NATURAL
GUARDIAN SMT.SHEEJA
BY ADVS. K.P.SUJESH KUMAR
SMT.KEERTHI K.NARAYANAN
RESPONDENT/PLAINTIFF:
K.G.SASI REKHA
W/O. SURESH, 'MAKAM', KADUKKAKUNNU,
VINOBANINIKETHAN P.O., ARYANAD VILLAGE, NEDUMANGAD,
THIRUVANANTHAPURAM,PIN-695 541
THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON
16.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R.F.A. No. 180 of 2020
and C.M. Appl. No.1 of 2020
-:2:-
MARY JOSEPH, J.
------------------------
R.F.A. No. 180 of 2020
and
C.M. Appl. No.1 of 2020
------------------------
Dated this the 16th day of July, 2021
JUDGMENT
C.M. Appl. No.1 of 2020 is filed seeking to condone the delay
of 2073 days occurred in filing the above appeal. The appeal is
filed by the defendants in O.S. No.78/2011 challenging the
judgment and decree dated 27.08.2014 by the Court of
Subordinate Judge, Nedumangad. The 1 st appellant in the above
application has sworn to the reasons for the delay of 2073 days.
According to her, the judgment in O.S. No.78/2011 was
pronounced on 27.08.2014. She was instructed by her counsel
before the trial court to apply for certified copies of the judgment
and decree. She applied for those on 28.08.2014 vide application
A No.916/2014. It was informed from the office of the counsel that
it will take time to receive the certified copies and she will be
intimated in due course of receipt of those. She was waiting for
the intimation to be received from the office of her counsel. But
there was no communication for a long period and therefore she
contacted the office of her counsel during the third week of
R.F.A. No. 180 of 2020
and C.M. Appl. No.1 of 2020
December, 2014. It was then informed from the office that
certified copies of the judgment and decree were received on
25.09.2014 and the factum was already communicated through a
post card. The post card was not received by her. Advice given
was to file appeal before this Court. To find out a lawyer, some
time was taken and the certified copies obtained were entrusted to
the office of an Advocate namely Nishin George at Ernakulam
during March, 2015. The counsel informed her that the appeal
memorandum would be prepared and she be informed about the
date on which it must be signed by her. She was also directed to
arrange money for paying the court fee. She could not arrange for
the money and accordingly some delay was occurred. In the
meantime one of her relatives introduced her to Adv.Shihab of
Manjeri Bar who offered all his assistance to prefer appeal against
the judgment and decree. Therefore records were taken back from
the office of Adv. Nishin George during June 2016 and those were
entrusted to Adv.Nijoy through Adv.Shihab for filing the appeal.
The certified copy of the judgment was not found with the records
then and therefore, a fresh application as A No.547/16 was filed
on 26.08.2016 for getting a fresh certified copy of the judgment.
The certified copy of the judgment was ready on 31.08.2016 and
R.F.A. No. 180 of 2020
and C.M. Appl. No.1 of 2020
the counsel received it on 01.09.2016. The certified copy was
forwarded after a long period and accordingly it was received by
her during the last week of December, 2016. Thereafter, the
certified copy of the judgment was entrusted to Adv.Shihab and he
was requested to make all arrangements for filing the appeal. The
appeal was not filed neither by Adv.Nijoy nor by Adv.Shihab stating
lame excuses. Therefore, the case records were obtained from
Adv.Shihab during the third week of February, 2019. Adv.Girishdas
who had conducted her case before the court below was
approached then. The certified copy of the judgment was missing
from the case records and therefore another application was filed
as A No.188/19 on 14.03.2019. By that time a delay of 1840 days
was occurred. The certified copy of the judgment was ready and
29.03.2019 was notified as the date to receive the same. The
certified copy was received by Adv.Girishdas on 02.04.2019. But
only in the last week of April 2019 the factum of receipt of it was
informed to her. The court was closed for summer vacation then
and therefore she was informed that the appeal would be filed only
after reopening of the Court. In the meantime she fell ill and
therefore she could not go to the office of her counsel for a quite
long time and ultimately during the last week of November, 2019,
R.F.A. No. 180 of 2020
and C.M. Appl. No.1 of 2020
she went to the office of Adv.Girishdas to collect the records of the
case. Time was also taken to locate a lawyer before this Court.
Thereafter the case bundle was entrusted to the lawyer identified
by her for preparing the appeal during the second week of
February, 2020. The new counsel insisted her to collect the back
records of the case and that process also took some time. The
back records were obtained and furnished to the new lawyer in the
third week of March, 2020. At that time the Covid 19 pandemic
has out broken and due to lock-down measures adopted by the
Government, transportation was restricted and therefore the
appeal could not be arranged to be filed. During the last week of
July 2020 funds were received to remit the court fee and was
entrusted to the counsel. Thereafter also due to continuation of the
lock down, the appeal could not be filed. Ultimately the appeal was
filed only on 17.08.2020. For the reasons stated above, a total
delay of 2073 days was occurred. The said delay is sought to be
condoned in the application on hand.
2. This court is not satisfied with the contentions raised by
the petitioner in the affidavit filed in support of the application.
The deponent has stated reasons one after the other for the
inordinate delay of 2073 days occurred in filing the appeal. None
R.F.A. No. 180 of 2020
and C.M. Appl. No.1 of 2020
of the reasons stated in the affidavit filed in support of the
application is convincing to this Court. It is found from the facts
sworn to in the affidavit that the conduct of the petitioner was that
of a contumacious litigant. Though it was urged that every counsel
entrusted by her to file appeal have defaulted in doing it properly,
she does not have any grievance against them and no complaint
has been preferred against any of them before the Bar Council.
What was the reason for the lethargic attitude of the counsel
towards the petitioner is also not known. It is stated in the
affidavit that the decree holder has already moved before the
execution court for getting the decree executed and thereby to
realise the money decreed from the petitioner. It appears that at
that juncture the petitioner has rushed to this Court to file the
appeal.
3. This Court finds no reason to issue notice to the
respondents in the C.M. Application, since on a reading of the facts
sworn to in the affidavit itself it is realised that the reasons stated
are devoid of basis. The delay is inordinate. If some cogent and
reliable reason was stated in the affidavit, the delay could have
been condoned. None of the reasons stated by the petitioner
appears to this Court, cogent and reliable.
R.F.A. No. 180 of 2020
and C.M. Appl. No.1 of 2020
4. In the above circumstances, this Court finds no reason to
condone the inordinate delay. CMA No.1 of 2020 fails and is
dismissed.
Since C.M. Application No.1 of 2020 is dismissed, R.F.A.
No.180 of 2020 also stands dismissed.
Sd/-
MARY JOSEPH, JUDGE
ttb
