The court ruled that mere negligence and inaction do not constitute sufficient cause for condoning a significant delay in filing an appeal.

JUDGMENT

 Crl.M.A. No.1 of 2024 has been filed under Section 5 of the Limitation Act, 1963, with prayer to condone the delay of 1580 days in filing the appeal.

2. Heard Sri. George Sebastian, the learned counsel for the petitioners and Sri.B.G. Harindranath, the learned senior counsel appearing for respondents 2 to 4, 7 to 9, 12, 13 and 15 to 17, instructed by the respective counsel who filed vakalath for them. Also heard Sri.A. Balagopal, the learned counsel appearing for respondents 10 and 11. Perused the averments in the petition and the counter affidavits filed by the respondents.

3. This appeal has been filed on 21.02.2024 challenging the decree and judgment dated 28.07.2017 in O.S. No.3/2014 on the files of the 1st Additional Sub Court, Kozhikode. According to the learned counsel for the petitioners/appellants, delay of 1580 days occurred in preferring the appeal and the reasons for the delay have been specifically averred in paragraph Nos.5 and 6 of the affidavit in support of the petition and the same are as under:

5. On coming to know about the foul play from the part of his counsel, he had issued a lawyer notice to his counsel and he had preferred a complaint against him before the bar Council of Kerala. A true copy of the registered lawyer notice dated 31.07.2021 issued on behalf of the 1 ^st defendant is produced herewith and marked as Annexure A. A true copy of the letter dated 25.07.2022 issued by the 1 ^st defendant to his lawyer is produced herewith and marked as Annexure B. A true copy of the complaint dated 25.11.2021 filed by the 1st defendant before the Bar Council of Kerala is produced herewith and marked as Annexure C. The 1 ^st defendant alone was conducting the case and he was looking after the case. He expired on 07.08.2022 after battling cancer for a long period. A true copy of the death certificate of the 1st defendant dated 29.08.2022 is produced herewith and marked as Annexure D. After the death of the 1 ^st defendant, the applicants herein had started to follow up the matter and the 1 ^st applicant herein is continuing with the proceedings before the Bar Council. The proceedings before the Bar Council is being pending as DC Case No. 25/2023. A true copy of the notice dated 29.07.2023 issued from Bar Council of Kerala is produced herewith and marked as Annexure E. Even though various request were made by the applicants herein to return the files to the lawyer of the deceased 1 ^st defendant, he had not returned the documents and files. The 1st defendant, before his death, had told that he had never engaged the said lawyer to appear for him in RFA 59/2018. After the death of the 1 ^st defendant, the applicants filed a petition to implead themselves in RFA 59/2018 filed by the original plaintiffs. The said IA (IA 2/2023 in RFA 59/2018) was allowed on 31.10.2023. While the applicants were exploring the possibility of filing a cross objection the said appeal, had filed a memo seeking withdrawal of the appeal, immediately after the Impleading petition was allowed. The said appeal was dismissed on 21.11.2023.

6. After going through the records of the case and after holding discussions with lawyers, the applicants came to know that the 1 ^st defendant did not get an opportunity to contest the case on merits and the judgment and decree is detrimental to the interests of the applicants. Therefore the appeal is being filed along with the accompanying petition to condone the delay. Originally the 1 ^st defendant was conducting the case. He was unaware of the fact that his interests were not protected by his counsel earlier. On coming to know about the foul play from the part of the counsel, he immediately initiated legal proceedings against him. Subsequently, he expired also, after suffering from cancer for a long period. When the applicants came to know about all these things,