IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 28TH OCTOBER 2011 / 6TH KARTHIKA 1933 FAO.No. 336 of 2010 ---------------------------- AGAINST THE ORDER DATED 26.5.2010 IN IA 1985/2009 IN OS.65/2007 of SUB COURT,KOCHI-5 .................... APPELLANT (S):PETITIONER/PLAINTIFF: ---------------------------------------------------------- MRS.SHYLA JOSE,AGED 64, D/O.LATE K.B.JOSEPH,RESIDING AT DOOR NO.36/628, DESHABHIMANI ROAD,KALOOR, KOCHI-17. BY ADV. SRI.S.ANANTHAKRISHNAN SRI.N.K.SUBRAMANIAN RESPONDENT(S): RESPONDENTS/DEFENDANTS: --------------------------------------------------------------------- 1. MRS.MEERA BASTIAN,AGED ABOUT 53, W/O.LATE STANLY JOSE BASTIAN,RESIDING AT 15/275, MOOLANKUZHI,COCHIN 682 002. 2. JOSEPH BINOY,AGED ABOUT 31, S/O.LATE STANLY JOSE BASTIAN,RESIDING AT 15/275, MOOLANKUZHI,COCHIN 682 002. 3. JOSEPH JOHN ALIAS NITHIN,AGED 20, S/O.LATE STANLY JOSE BASTIAN,RESIDIDING AT 15/275, MOOLANKUZHI,COCHIN 682 002. 4. MRS.SHIRLY JOSE,AGED 63, D/O.LATE K.B.JOSEPH,RESIDING AT 3,SUBASH LANE, SOUTH JANATHA ROAD,PALARIVATTOM,COCHIN 682 025. 5. SUBASH JOSEPH,AGED 58, S/O.LATE K.B.JOSEPH,RESIDING AT DOOR NO.22/1374,NEAR ST.LAWRENCE SCHOOL,EDACOCHI,COCHIN 682 008. 6. MRS.SUSHAMMA FRANCIS,AGED 56,D/O.LATE SRI.K.B.JOSEPH,RESIDING AT 808,CLARION DRIVE, NORTH CAROLINA 27705,U.S.A,REP.BY POWER OF ATTORNEY HOLDER .SANTHOSH JOSEPH,S/O.K.B.JOSEPH,RESIDING AT SEALINE,XV/275,NAZARETH, COCHIN-02. FAO.No. 336 of 2010 -2- 7. SANTHOSH JOSEPH,AGED 52, S/O.K.B.JOSEPH,RESIDING AT SEALINE,XV/275,NAZARETH, COCHIN-682 002. 8. SOPHIE VINAY,AGED 51, D/O.K.B.JOSEPH,DO. DO.,RESIDING AT 15/275,SEALINE HOUSE. 9. ANSU JOSEPH,AGED 43,W/O.SANTHOSH JOSEPH, DO. DO. R1 BY ADV.SRI.ABRAHAM K.JOHN SMT.DIVYA K.NAIR R5 BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SMT.ACHU SUBHA ABRAHAM R8 BY ADV. SRI.GEORGE CHERIAN THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 28/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------- F.A.O.No.336 of 2010 ----------------------------------------- Dated, this the 28th day of October, 2011 J U D G M E N T K.M.Joseph, J. Appellant is the petitioner in I.A.No.1985/2009 in O.S.No.65/2007. O.S.No.65/2007 is a suit for partition. The said suit came to be dismissed for default. I.A.No.1985/2009 is an application filed to restore the said suit. That application has been dismissed. Hence the appeal. 2. According to the appellant, her son Sandeep Jose had filed proof affidavit on 26.11.2008. Sri.Sandeep Jose had also filed a petition to advance the case on 27.5.2009 since the Debt Recovery Tribunal was taking steps to proclaim and sell the C-Schedule property and he wanted to go to Australia. The case was not advanced due to pre-occupations of the Court, it is contended. It was the case of the appellant that, in the meantime her son proceeded to Australia in June, 2009 and he was to return in December, 2009. According to the appellant, she was not in a position to attend and conduct the case because of illness. It is stated that application was moved by the appellant's counsel to remove the case from the list on 18.11.2009. But, it was F.A.O.No.336 of 2010 -2- dismissed on 20.11.2009. 3. A counter affidavit has been filed by the 5th respondent. Respondents 1 to 4 and 6 to 9 though appeared did not file any counter. The court below, however dismissed the application inter alia finding that the best person to say about the reason for the absence is the appellant herself. She did not give oral evidence or subject herself to cross examination. No medical certificate is also produced. 4. We heard the learned counsel for the appellant and learned counsel for the Ist and 5th respondents. Learned counsel for the Ist respondent points out that the present suit is an abuse of the process of the Court. He would further point out that the prayer in the suit is only for partial partition and another suit has been filed by the Ist respondent for partition including the properties of the mother also and that there was no need for restoration of the suit. Learned counsel for the 5th respondent would submit that the appellant did not give evidence as such to establish the correctness of her claim. After all, we feel that an opportunity should be granted so that there is adjudication on merits. There is not much serious dispute that the son of the F.A.O.No.336 of 2010 -3- appellant has gone to Australia. Therefore, there is probability in the case of the appellant. We take a liberal view and allow the appeal on condition that the appellant pays Rs.1,000/- (Rupees one thousand only) each as cost to the counsel for the Ist and 5th respondents appearing in this Court and produce the memo to that effect within ten days from today. Upon payment of cost the suit will stand restored and the Sub Court, Kochi will proceed to dispose of O.S.No.65/2007. We also make it clear that it is open to the Ist respondent to move for joint trial of the suit filed by her along with the present suit. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS Certified that the appellant has paid Rs.1,000/- (Rupees one thousand only) each as cost to the counsel for the !st and 5th respondents within the time limit in compliance of the direction contained in the judgment dated 28.10.2011 in F.A.O.336/2010, vide memo c.f.No.5155/11 dated 4.11.2011. Sd/- Registrar (Judicial)