IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 3RD AUGUST 2010 / 12TH SRAVANA 1932 SA.No. 750 of 1997(E) --------------------- AS.200/1996 of SUB COURT, TIRUR OS.295/1994 of MUNSIFF COURT, TIRUR .................... APPELLANTS/APPELLANTS/PLAINTIFFS: ------------------------------------------- 1. SATHYAKKAL AMINAKUTTY, D/O.MUHAMMED, AGED 55, RESIDING AT PUTHUR AMSOM AND DESOM IN TIRUR TALUK. 2. SATHYAKKAL MUHAMMADALI, S/O.SAIDALI, AGED 37 YEARS, -DO- -DO- -DO- -DO- BY ADV. MR.K.RAMACHANDRAN MR.K.MANU RAJ RESPONDENT/RESPONDENT/DEFENDANT: --------------------------------------------- THRIKKANASSERI KRISHNAN, S/O.ARUMUGHAN, AGED 47, PUTHUR AMSOM AND DESOM, TIRUR TALUK, P.O. PADINJAREKKARA, MALAPPURAM DIST. ADV. MR.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE MS.PRABHA R.MENON FOR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SA.No. 750 of 1997(E) ORDER ON C.M.P.NOS.2022/2002 & 1932/1997 DISMISSED. 3.8.2010 SD/- HARUN-UL-RASHID, JUDGE. // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ S.A.No.750 Of 1997 ---------------------- Dated this the 3rd day of August, 2010. J U D G M E N T Plaintiffs in O.S.No.295 of 1994 of the Munsiff Court, Tirur, are the appellants. The appeal is directed against the judgment and decree in A.S.No.200 of 1996 of the Sub Court, Tirur. Suit is filed for permanent injunction. The trial court held that the plaintiffs have not proved possession of the plaint schedule property on the date of suit. The suit was dismissed with costs. The lower appellate court dismissed the appeal in limine. Parties hereinafter are referred to as the plaintiffs and defendant as arrayed in the suit. 2. The plaintiffs and defendant adduced oral and documentary evidence. PW1, DWs 1 & 2 were examined and Exts.A1 to A7, B1 to B7 and C1 to C3 are marked. 3. The trial court framed necessary issues. The trial court answered all the issues and held that the plaintiffs have not proved their possession over the plaint schedule property. 4. In the appeal preferred by the plaintiffs, the appellate court held that the there is no merit in the appeal and dismissed the appeal in limine. S.A.No.750 Of 1997 ::2:: 5. The learned counsel for the plaintiffs submitted that the dismissal of the appeal in limine, even without calling for the records or perusing the evidence has resulted in gross miscarriage of justice. The learned counsel submitted that the case was contested very seriously, that the plaintiffs adduced evidence in support of their case, that the trial court framed necessary issues, heard the arguments on both sides and decided the case on merits. The lower appellate court in the first appeal failed to issue notice to the respondents and proceeded to dismiss the appeal stating that there is no merit in the appeal filed by the appellants. According to the learned counsel for the appellants, they have raised valid and tenable ground in the appeal, therefore, the summary dismissal of the appeal is liable to be set aside. 6. After hearing both sides, I am of the view that the summary dismissal of the appeal, in the facts and circumstances of the case, is not justified. The lower appellate court should have decided the case after issuing notice to the respondents taking into account the fact that the questions were seriously urged and agitated before the trial court. S.A.No.750 Of 1997 ::3:: 7. This Court is not going into the merits of the contentions raised by the respective parties. The matter requires reconsideration. In the result, the appeal is allowed. The judgment and decree passed by the lower appellate court is set aside. The lower appellate court is directed to hear and dispose of the appeal on merits within a period of six months from the date of receipt of a copy of this judgment. Parties shall appear before the court below on 6.9.2010. No order as to costs. HARUN-UL-RASHID, Judge. bkn/-