Damodaran Vs. State of Kerala - Court Judgment

SooperKanoon Citationsooperkanoon.com/1101182
CourtKerala High Court
Decided OnDec-06-2013
JudgeHONOURABLE MR.JUSTICE K.M.JOSEPH
AppellantDamodaran
RespondentState of Kerala
Excerpt:
in the high court of kerala at ernakulam present: the honourable mr.justice k.m.joseph & the honourable mr. justice a.hariprasad friday, the6h day of december201315th agrahayana, 1935 mfa.no. 126 of 2013 (b) ----------------------- against the order/judgment in oa372001 of forest tribunal, kozhikode dated1205-2004. appellant(s)/applicant: ------------------------ damodaran, aged55years, s/o.velayudhan, thottungal, kuthnoor p.o., alathur taluk, palakkad. by adv. sri.k.p.balagopal. respondent(s)/respondents: -------------------------- 1. state of kerala represented by the chief secretary government of kerala, thiruvananthapuram-695001.2. custodian of vested forests aranya bhavan, forest complex, olavakkode palakkad-678002. by special government pleader sri.madhavan kutty. this misc. first appeal having come up for admission on0612-2013, the court on the same day delivered the following: amk k.m.joseph & a.hariprasad, jj.------------------------------------------------ c.m.appln.no.2526 of 2013 in m.f.a no.126 of 2013 & m.f.a no.126 of 2013 ------------------------------------------------- dated this the 6th day of december,2013. judgment a.hariprasad, j.the appellant approached this court by challenging the order passed by the forest tribunal, kozhikode in o.a no.37/2001. the impugned order was passed on 12/05/2004. the appeal was filed on 25/10/2013. even according to the appellant, there is a delay of 3369 days in filing the appeal. along with the appeal he filed the application for condonation of delay under section 5 of the limitation act, with following averments :- " the above miscellaneous first appeal (forest) is filed against the order dated 12/05/2004 in o.a no.37/2001 of the forest tribunal, kozhikode dismissing the original application filed for declaration that the original application scheduled properties are not private forest and also claiming exemption under section 3 (2) & (3) of the kerala private forests (vesting & assignment) act, 1971. the impugned order has been passed on 12/5/2004. m.f.a no.126 of 2013 2 the above appeal ought to have been filed on or before 11/7/2004. it is respectfully submitted that my counsel who was appearing for me before the tribunal had a paralytic stroke and had been in treatment for a long time and therefore the dismissal of the above original application could not be informed to me. though i have tried to contact him on several occasions, all fell in vain. whenever i had been to the advocate's office to know the situation of the case i have been told that it is pending. doubting the situation i contacted a counsel at kozhikode and he enquired the matter there in the office of the forest tribunal and came to know that the original application was disposed of on 12/5/2004. i had made arrangement to obtain certified copy of the order. application for certified copy of the impugned order was made on 12/8/2013 and it was delivered on 13/8/2013. due to financial stringency i could not meet a counsel to file the appeal against the order in original application without further delay. therefore, there occurred 3369 days delay in filing the above appeal. there is no wilful laches or omission on my part in not filing the appeal in time. the situation was beyond my control. i am advised that i have got a good chance to succeed in the case. under m.f.a no.126 of 2013 3 such circumstances, if the delay occurred in filing the appeal is not condoned i will be put to irreparable loss and injury. separate petition seeking the said relief is filed herewith and it may kindly be allowed." 2. we have carefully perused the reasons stated by the appellant for condonation of the delay. we do not find any satisfactory or sufficient reason mentioned for condoning the inordinate delay. it is not at all mentioned in the affidavit that as to when he came to know of the impugned order and even after knowing the fact why he did not take steps promptly for filing this appeal.3. considering the averments in the affidavit, we are not satisfied that there is sufficient cause for condonation of delay. therefore, the application is dismissed. consequently, the appeal will also stand dismissed. sd/- k.m.joseph, judge. sd/- amk a.hariprasad, judge. //true copy// p.a to judge
Judgment:

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.HARIPRASAD FRIDAY, THE6H DAY OF DECEMBER201315TH AGRAHAYANA, 1935 MFA.No. 126 of 2013 (B) ----------------------- AGAINST THE ORDER

/JUDGMENT

IN OA372001 of FOREST TRIBUNAL, KOZHIKODE DATED1205-2004. APPELLANT(S)/APPLICANT: ------------------------ DAMODARAN, AGED55YEARS, S/O.VELAYUDHAN, THOTTUNGAL, KUTHNOOR P.O., ALATHUR TALUK, PALAKKAD. BY ADV. SRI.K.P.BALAGOPAL. RESPONDENT(S)/RESPONDENTS: -------------------------- 1. STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695001.

2. CUSTODIAN OF VESTED FORESTS ARANYA BHAVAN, FOREST COMPLEX, OLAVAKKODE PALAKKAD-678002. BY SPECIAL GOVERNMENT PLEADER SRI.MADHAVAN KUTTY. THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON0612-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: amk K.M.JOSEPH & A.HARIPRASAD, JJ.

------------------------------------------------ C.M.Appln.No.2526 of 2013 in M.F.A No.126 of 2013 & M.F.A No.126 of 2013 ------------------------------------------------- Dated this the 6th day of December,2013.

JUDGMENT

A.Hariprasad, J.

The appellant approached this Court by challenging the order passed by the Forest Tribunal, Kozhikode in O.A No.37/2001. The impugned order was passed on 12/05/2004. The appeal was filed on 25/10/2013. Even according to the appellant, there is a delay of 3369 days in filing the appeal. Along with the appeal he filed the application for condonation of delay under Section 5 of the Limitation Act, with following averments :- " The above Miscellaneous First Appeal (Forest) is filed against the order dated 12/05/2004 in O.A No.37/2001 of the Forest Tribunal, Kozhikode dismissing the original application filed for declaration that the original application scheduled properties are not private forest and also claiming exemption under Section 3 (2) & (3) of the Kerala Private Forests (Vesting & Assignment) Act, 1971. The impugned order has been passed on 12/5/2004. M.F.A No.126 of 2013 2 The above appeal ought to have been filed on or before 11/7/2004. It is respectfully submitted that my counsel who was appearing for me before the tribunal had a paralytic stroke and had been in treatment for a long time and therefore the dismissal of the above original application could not be informed to me. Though I have tried to contact him on several occasions, all fell in vain. Whenever I had been to the advocate's office to know the situation of the case I have been told that it is pending. Doubting the situation I contacted a counsel at Kozhikode and he enquired the matter there in the office of the Forest Tribunal and came to know that the original application was disposed of on 12/5/2004. I had made arrangement to obtain certified copy of the order. Application for certified copy of the impugned order was made on 12/8/2013 and it was delivered on 13/8/2013. Due to financial stringency I could not meet a counsel to file the appeal against the order in original application without further delay. Therefore, there occurred 3369 days delay in filing the above appeal. There is no wilful laches or omission on my part in not filing the appeal in time. The situation was beyond my control. I am advised that I have got a good chance to succeed in the case. Under M.F.A No.126 of 2013 3 such circumstances, if the delay occurred in filing the appeal is not condoned I will be put to irreparable loss and injury. Separate petition seeking the said relief is filed herewith and it may kindly be allowed." 2. We have carefully perused the reasons stated by the appellant for condonation of the delay. We do not find any satisfactory or sufficient reason mentioned for condoning the inordinate delay. It is not at all mentioned in the affidavit that as to when he came to know of the impugned order and even after knowing the fact why he did not take steps promptly for filing this appeal.

3. Considering the averments in the affidavit, we are not satisfied that there is sufficient cause for condonation of delay. Therefore, the application is dismissed. Consequently, the appeal will also stand dismissed. Sd/- K.M.JOSEPH, JUDGE. Sd/- amk A.HARIPRASAD, JUDGE. //True Copy// P.A to Judge