IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 13TH JANUARY 2009 / 23RD POUSHA 1930 FAO.No. 235 of 2007() --------------------- AS.308/1996 of SUB COURT, NEDUMANGAD .................... APPELLANT(S)/7TH PETITIONER ----------------------------------------- VANAJAKSHI, PAPPANATHUVILAYIL VEEDU, PARACHAL MURI, KULATHUMMAL, NEDUMANGAD, THIRUVANANTHAPURAM. BY ADV. SRI.B.KRISHNA MANI SMT.S.SIBHA SRI.SIJU RAJAN RESPONDENT(S): PETITIONERS 1 TO 6 & 8/COUNTER PETITIONERS 1 TO 7 ---------------------------------------------------------------- 1. RAJAMMA, PAPPANATHUVILAYIL VEEDU, PARACHAL MURI, KULATHUMMAL, NEDUMANGAD, THIRUVANANTHAPURAM. 2. SUBHADRA, OF DO. DO. 3. SHYAMALA, OF DO. DO. 4. PADMAKUMARI, OF DO. DO. 5. MAHESWARI AMMA CHELLAMMA, OF DO. DO. 6. SUDHAKUMARI, OF DO. DO. 7. SHARADA, OF DO. DO. 8. R.MAHESWARAN, MOHANAVILASOM, THIRUMALA, THIRUVANANTHAPURAM. 9. M.SARASAMMA, OF DO. DO. 10. M.VISWAMMAL, MOHANAVILASATHU VEEDU, VALIYAVILA, ERUTHATTUKONATH, OF DO. DO. 11. R.BALAKRISHNAN, OF DO. DO. 12. K.LEKSHMI, THENGUVILA VEEDU, ERUTHATTUKONAM, OF DO. DO. 13. K.OMANA, SHWASADHANAM, PERUMKAVU, VILAPPIL. 14. K.SASIKUMAR, PAPPANATHU VILAYIL VEEDU, PARACHAL, KULATHUMMAL. ADV. SRI.R.S.KALKURA FOR R8 SRI.M.S.KALESH FOR R8 SRI.HARISH GOPINATH FOR R8 SRI.V.VINAY MENON FOR R8 SRI.M.AJAY (IRUMPANAM) FOR R8 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 13/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = C.M. Appln. 1315 of 2007 and F.A.O. NO. 235 OF 2007 = = = = = = = = = = = = = = = Dated this the 13th day of January, 2009. J U D G M E N T This is an application filed to condone the delay of 898 days in filing the appeal. The lower appellate Court dismissed applications for restoration of the appeal as well the petition to condone the delay on 12.10.04. Against that order a C.R.P. was filed and it happened to be dismissed on 2.1.06 for default. The applicant would submit that he was not informed of the same and moreover that no revision will lie against such an order. It has also been brought to my notice a writ petition was filed in August 2004 and it was also dismissed. More than all these things it has to be borne in mind that the very petition for restoration of the appeal dismissed was filed with a petition to condone the delay of 1696 days. So the sum and substance of these materials would reveal that it is a clear case of gross negligence and grave mis-conduct. The said question came up for C.M. Appln. 1315 of 2007 and F.A.O. NO. 235 OF 2007 -:2:- consideration before this Court in the decision reported in Sreedhara Kurup v. Mickel (1968 KLT 599). This Court held that the broad principles of natural justice always demand that an opportunity be given to the parties to contest the case on merits. But the Court equally cautioned that if it is hit by gross negligence or grave misconduct no such leniency need be shown. It was a case where the petitioner in that matter moved the Court within the prescribed time and had adduced some evidence to establish his inquisitiveness to prosecute the case. 2. In this case the delay for restoration of the appeal is inordinate and it runs to about 5 years. Thereafter he moved an application in the form of a civil revision petition and it was also dismissed for non prosecution. Even according to the appellant the said order was passed on 2.1.06 whereas the present FAO is filed on 21.7.07. I feel the facts itself speaks in volumes about the negligence of the person and taking into consideration the inordinate delay that has been caused even for filing the restoration application, I find no ground to condone the delay of 898 C.M. Appln. 1315 of 2007 and F.A.O. NO. 235 OF 2007 -:3:- days. Learned counsel for the appellant would submit before me that a C.R.P. was filed by mistaken impression but the C.R.P was not dismissed on mistaken impression but was for default and further it is only after a lapse of 15 months an attempt is made to file this FAO with the delay. Therefore if this delay is condoned it will be putting a party who has won the case into a loosing position which cannot be done especially in the back drop of the gross negligence of the appellant in this case. Therefore the petition to condone the delay is dismissed. M.N. KRISHNAN, JUDGE. ul/- F.A.O. NO. 235 OF 2007 Since the petition to condone the delay is dismissed, this FAO is also dismissed. M.N. KRISHNAN, JUDGE. ul/-