IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR TUESDAY, THE 8TH APRIL 2008 / 19TH CHAITHRA 1930 FAO.No. 91 of 2007() -------------------- I.A.No.1043/2006 in AS.50/2001 of SUB COURT, HOSDRUG .................... APPELLANT: ------------- V.KUNHAMBU, S/O.VANIYAN KUNHUMBU, ADUKKATH PARAMBA, MADIKAI VILLAGE. BY ADV. SRI.T.B.SHAJIMON RESPONDENTS: ------------- 1. VALLIYODICHI MANIKKAM (DIED). 2. RAVI, S/O.VALLIYODICHI MANIKKAM, EX-MILITARY PERSONAL, MUCHILET, AJANUR VILLAGE, HOSDURG TALUK. 3. LOHITHAKSHAN, S/O.MANIKKAM. 4. MANIKANDAN, S/O.MANIKKAM. 5. SRIDEVI, S/O.MANIKKAM. 6. SREELATHA, D/O.MANIKKAM, NO. 3 TO 6 ARE PERMANENTLY RESIDING AT KIZHAKKUMKARA, ANJUR VILLAGE. BY ADV. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 08/04/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.PADMANABHAN NAIR, J. ------------------------------- F.A.O.No. 91 of 2007 ------------------------------- Dated this the 8th April, 2008. J U D G M E N T Appellant in A.S.No.50/2001, on the file of the Subordinate Judge's Court, Hosdurg, is the appellant herein. This appeal is filed against the order passed by the court below dismissing I.A.No.1043/2006 filed under Order XLI Rule 19 of Civil Procedure Code for re-admitting the appeal which was dismissed for default. Appellant filed the suit against the respondents for permanent injunction to restrain the respondent from entering in the plaint schedule property. The same happened to be dismissed. Appellant filed appeal as A.S.No.50/2001. The appeal came up for hearing on 3.9.2006. On that date, both the appellant and his counsel were absent. So, the appeal was dismissed for default. Within the time allowed by law, the appellant filed a petition under XLI Rule 19 of Civil Procedure Code for re-admitting the appeal. The prayer was opposed. The learned Sub Judge dismissed that application. Challenging that order, this appeal is filed. FAO.No.91/2007 2 2. The case projected by the appellant in his petition for re-admitting of appeal was that he could not attend the court on account of low back pain. Though the appellant produced a medical certificate, the court below did not act upon it, doubting the genuineness. Even accepting the fact that appellant did not appear on the date on which it was posted for hearing, the counsel could have appear and argued the matter. It appears that the presence of the client may not be necessary in all cases. So, I do not find any reason to punish a litigant for the fault of the lawyer. Hence, I am of the view that one more opportunity is given to the appellant to get a disposal on merits. 3. In the result, the appeal is allowed. The order passed by the court below dismissing I.A.No.1043/2006 in A.S.No.50/2001 is hereby set aside. The court below is directed to take back A.S.No.50/2001 back to file and dispose of the same, within three months from the date of appearance of the appellant before the court below. But I make it clear that in case the appellant fails to take steps for hearing the appeal within the time frame, as stipulated above, the court below can dismiss the appeal for default. FAO.No.91/2007 3 Appellant shall appear before the court below on 26.5.2008. K.PADMANABHAN NAIR, JUDGE nj.