IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 5TH AUGUST 2009 / 14TH SRAVANA 1931 FAO.No. 295 of 2008() --------------------- I.A. NOS.1329/2008 & 1330/2008 IN OS.208/2008 OF PRINCIPAL SUB COURT,ALAPPUZHA APPELLANTS/PETITIONER/PLAINTIFFS. ---------------------------------------- 1. SUSAN JOY @ KAMALAMMA JOY, KRISHNA THULASI, WEST FORT, MAVELIKKARA FROM JYOTHIS, PONAKAM MURI, THEKKEKARA VILLAGE, MAVELIKKARA TALUK. 2. JISHU SUSAN JOY, KRISHNA THULASI, WEST FORT, MAVELIKKARA FROM JYOTHIS, PONAKAM MURI, THEKKEKARA VILLAGE, MAVELIKKARA TALUK. 3. JEEVAN JOY (MINOR), KRISHNA THULASI, WEST FORT, MAVELIKKARA FROM JYOTHIS, PONAKAM MURI, THEKKEKARA VILLAGE, MAVELIKKARA TALUK. BY ADV. SRI.B.PRAMOD SRI.GEORGE MATHEWS RESPONDENTS: RESPONDENTS/RESPONDENTS/DEFENDANTS. -------------------------------------------------- 1. SISODIA EDUCATIONAL,MEDICAL AND CHARI- TABLE SOCEITY REPRESENTED BY ITS CHAIRMAN. 2. FR.M.K.VARGHESE, MUTHALAVANNA PARAMBIL, KALEEKAL, CHERUVALLOR MURI, CHERIYANADU, CHENGANNUR. F.A.O. 295/2008 2 ADDITIONAL RESPSONDENT: 3. P.C. CHERIYAN, S/O. LATE C. CHERIYAN, PLAMOOTTIL HOUSE, ARUNOOTTIMANGALOM MURI, VETTIYAR VILLAGE, ARUNOOTTIMANGALAM P.O. MAVELIKKARA, ALAPPUZHA DIST. PIN. 690 110. (ADDL. R3 IS IMPLEADED AS PER ORDER DATED 5.8.2009 ON I.A. 1613/2009). ADV. SRI.ROY CHACKO FOR R1-2 SMT.DAISY THAMPY(CONCILIATOR) SRI.LAL GEORGE FOR ADDL.R3 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 05/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: F.A.O. 295/2008 3 P.R. RAMAN & P. BHAVADASAN, JJ. = = = = = = = = = = = = = = = = = = = F.A.O. 295 OF 2008 = = = = = = = = = = = = = DATED THIS, THE 5TH DAY OF AUGUST, 2009. J U D G M E N T Raman, J. Appeal by the plaintiffs in a suit for money - O.S.208/2008 on the file of the Sub Court, Mavelikkara. Originally, the first plaintiff and her husband were arrayed as plaintiffs in the suit and later, on the death of her husband, the appellants 2 and 3 got themselves impleaded as additional appellants. According to the plaint claim, the amount was borrowed by the second respondent after executing and issuing two post dated cheques along with a written agreement. The case was posted for trial on 4.12.2007. The first appellant was present for giving evidence. But the respondents contended that there is a transfer petition Tr.P.(C) No. 260/2007 pending before this Court and so the case was adjourned to 4.3.2008 and then to 17.4.2008 for production of the transfer order. On 17.4.2008, the defendant remained absent and so the case was adjourned to 28.5.2008. In the mean time, on 12.2.2008 the first appellant met with an accident and suffered serious injuries. By order dated 25.2.2008 this Court allowed FAO 295/2008 2 the transfer petition and transferred the suit to the Sub Court, Alappuzha. But there was no posting date. The transferee court posted the case to 27.3.2008 on which day neither side appeared and hence the case stood posted to 3.4.2008. The appellant had no knowledge about the transfer of the case and since no fresh notice was received, the appellants happened to be absent in the subsequent postings, which led to the dismissal of the suit for default on 5.4.008. Later, the appellants filed an application for setting aside the order dismissing the suit for default and for restoration for the suit to file along with a petition for condoning the delay of 22 days caused in filing the same. The court below dismissed the application for condonation of the delay and consequently, the application for restoration of the suit to file. Hence this appeal. 2. This Court admitted the appeal and as per order in Ia. 451/2009 an interim injunction was granted restraining the respondents from alienating the property for a period of one month. An attempt to settle the matter was also made later by this Court; however, it was not successful. I.A. 1089/2009 was filed by the FAO 295/2008 3 appellant for reliefs alleging violation of the order of injunction. According to her, in violation of the order, alienation was effected in favour of the 6th respondent. Hence this Court, on 27.3.2009 ordered not to effect transfer in the revenue register on the basis of Annexure I sale deed until further orders. Though it was contended by the respondent that there was no deliberate attempt or action on their part in violation of the order of this Court and filed a counter affidavit, the court was not fully convinced of the reasons given in the counter affidavit and directed the plaint amount to be deposited. Accordingly, an amount of Rs. 35 lakhs was deposited in two instalments. The amount is deposited in Nationalised Banks and receipts are deposited before this court. 3. We have heard the parties. The facts as stated above would clearly show that the court below ought to have condoned the delay of 22 days. It is true that the doctor is not examined in this case; but a medical certificate was produced. It is also not the case that the appellant was absent for more than one occasion deliberately with a view to protract the proceeding. After all, she has filed a suit for realisation of money after paying huge amount FAO 295/2008 4 by way of court fee. It is also borne out from the records that the suit was transferred subsequently to another court and it is her case that she had no notice about the posting by the transferee court. In such circumstances, we feel that this is a fit case where the application for setting aside the order dismissing the suit for default ought to have been allowed and the suit restored to file. 4. In the circumstances and for the reasons stated above, we allow this appeal and the applications I.A. Nos.1329/2008 and 1330/2008. The order dismissing the suit for default is set aside and the case is restored to file. The court below will proceed to dispose of the suit expeditiously, at any rate, within a period of four months from the date of receipt of a copy of this order. The amount will continue in deposit and after the disposal of the suit, it is open to file an application for withdrawal of the same by whichever party entitled to as per the judgment. This will not stand in the way of the appellant seeking any additional security to cover up balance, if any, towards plaint claim by approaching the court below. I.A. 1089/2009 is transmitted to the court below for consideration along with the suit. FAO 295/2008 5 The appeal is allowed as above. P.R. RAMAN, JUDGE P. BHAVADASAN, JUDGE. KNC/- I.A. number "I.A. 1089/2009" occurring in paragraph 2 and paragraph 4 of the judgment dated 05/08/2009 in F.A.O. 295/2008 is substituted as "I.A.1087/2009" vide order dated 24.02.2010 in I.A. 3495/2009. Sd/- Registrar (Judicial)