ABDUL KAREEM Vs. STATE OF KERALA

JUDGEMENT

(1.) The short but interesting question arises for consideration in this Writ Petition is whether an application under Order 41 Rule 3-A of the C.P.C. must invariably be accompanied by an affidavit of the appellant concerned.

(2.) The fact situation is simple. The petitioner wanted to prefer an appeal under Section 61-D of the Kerala Forest Act. There was a delay of 162 days in filing the appeal. According to the petitioner, he had done the needful and had entrusted his counsel to file the appeal. But unfortunately the appeal could not be filed in time as the counsel had misplaced the case bundle. It was traced only two days prior to the actual date of filing the appeal. The petitioner/appellant, in these circumstances, prayed that the appeal may be entertained after condoning the delay in filing the appeal. That petition was filed by his counsel on his behalf. That petition filed by his counsel on his behalf was supported by an affidavit filed by the counsel wherein the counsel owned the responsibility for the delay of 162 days in filing the appeal. There are categoric statements in the affidavit by the Advocate that the delay of 162 days occurred on account of his fault in misplacing the case bundle entrusted with him by the petitioner/ appellant.

(3.) The court below considered the prayer for condonation of delay. The learned Additional District Judge took the view that an affidavit filed by the counsel is not sufficient to support the prayer for condonation of delay under Order 41 Rule 3-A of the CPC. The relevant observations appear in para-4 of the impugned order - Ext.P4 which I extract below in extenso: