IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 1ST OCTOBER 2010 / 9TH ASWINA 1932 OP(C).No. 160 of 2010(O) ------------------------ AGAINST THE ORDER IN IA 622/2010 IN AS.19/2010 of I ADDL. DISTRICT COURT, THIRUVANANTHAPURAM OS NO.207/2007 OF SUB COURT, ATTINGAL. .................... PETITIONER (S): -------------------- BINI, W/O.ANILKUMAR, AGED 32 YEARS, ANIL BHAVAN, THIRUVELOOR, ANDOORKONAM POST, POTHENCODE VIA, PIN-695584. BY ADV. SRI.J.JAYAKUMAR RESPONDENT(S): --------------- 1. BHASKARAN, AGED 66 YEARS, S/O.PADMANABHAN, BEENA BHAVAN, VAVARA AMBALAM, MAJAMALA WARD, KEEZHTHONNAKAL VILLAGE, THIRUVANANTHAPURAM TALUK-695101. 2. BIJI, D/O.BHASKARAN, AGED 30 YEARS, PUTHUVAL PUTHEN VEEDU, KATTAYIKONAM P.O., THIRUVANANTHAPURAM-695584. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 01/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.160 of 2010 -------------------------------------- Dated this the 1st day of October, 2010. JUDGMENT Plaintiff in O.S.No.207 of 2007 of the court of learned Sub Judge, Attingal and the appellant in A.S.No.19 of 2010 of the court of learned Additional District Judge-I, Thiruvananthapuram is the petitioner before me challenging Ext.P9, order by which learned Additional District Judge on a request made by respondent No.2 has recalled Ext.P6, judgment in the appeal and posted the appeal for hearing. Petitioner sued respondents for a declaration for title and possession and consequential reliefs and as per Ext.P3, judgment the suit was dismissed after considering evidence let in by both sides. That judgment and decree were challenged in A.S.No.19 of 2010. The appeal resulted in Ext.P6, judgment. It is seen from Ext.P9, order that when the appeal was taken up for hearing there was no representation for any of the respondents and learned Additional District Judge after hearing the counsel for petitioner/appellant allowed the appeal. Thereon respondent No.2 filed I.A.No.622 of 2010 “to post the appeal for rehearing”. That application was opposed by the petitioner. But, rejecting the objection of petitioner, learned Additional District Judge, in the words stated in Ext.P9, order as an abundant caution to give respondent No.2 an opportunity to advance her arguments, allowed the application. That order is under challenge. Learned counsel contends that there was no representation for respondent Nos.1 and 2 at the time appeal was taken up for hearing and there OP(C) No.160/2010 2 was also nothing to rehear in the light of evidence on record. It is contended that even against interim orders passed by the learned Additional District Judge none of the respondents had raised any grievance. 2. That, none of the respondents had raised any grievance against interim orders passed by learned Additional District Judge in the appeal is not a ground to contend that they have no arguments to be advanced in the appeal. Even Ext.P9, order states that respondents or counsel were not present at the time when the appeal was heard and disposed of reversing judgment and decree of the trial court. In the affidavit in support of I.A.No.622 of 2010 respondent No.2 stated that Advocate R.Ajaya Kumar was engaged to represent her in the appellate court but on 18.09.2010 he had to attend another judicial forum to conduct a case and hence a representation was made by his junior Advocate at the time of roll call. But when the case was taken up for hearing there was no representation for respondent No.2. It is thereon that the appeal was heard in the absence of respondents. 3. Order XLI Rule 21 of the Code of Civil Procedure (for short, “the Code”) enables a respondent who was absent at the time of hearing of the appeal to seek a rehearing. Learned Additional District Judge has referred to the circumstances under which he thought that it is appropriate to give an opportunity to respondents to advance their arguments and accordingly allowed I.A.No.622 of 2010 vide Ext.P9, order. It was well within the power of the learned Additional District Judge to recall the judgment and post the appeal for OP(C) No.160/2010 3 rehearing. It is not as if the jurisdiction has been illegally exercised by the learned Additional District Judge. As such no interference is required to the order under challenge. Resultantly this petition fails. It is dismissed. THOMAS P.JOSEPH, Judge. cks