IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 FAO.No. 307 of 2005() --------------------- AGAINST THE ORDER IN IA 844 /2005 IN AS.59/2004 of ADDL.DISTRICT COURT (ADHOC)-II, THODUPUZHA OS.226/1995 of MUNSIFF COURT, DEVIKULAM .................... APPELLANT/PETITIONER/DEFENDANT. -------------- P.K.PARVATHY, D/O.PALIAN, M.P.IX/55, SEVEN MALLEY LANE, OLD MUNNAR. K.D.H.VILLAGE. BY ADV. SRI.K.REGHU KOTTAPPURAM RESPONDENT(S): PLAINTIFFS. ------------------- TATA TEA LIMITED, A COMPANY INCORPORATED UNDER THE INDIAN COMPANIES ACT, HAVING ITS RGISTERED OFFIE AT BISHOP LEFROY ROAD, CALCUTTA, AND REGIONAL OFFICE AT MUNNAR REPRESENTED BY THE D EPUTY GENERAL MANAGER, CORPORATE AFFAIRS, T.DAMU, MUNNAR P.O. K.D.H. VILLAGE. ADV. SRI.JOSEPH KODIANTHARA SRI.MATHEWS K.UTHUPPACHAN THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 10/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. ------------------------------- F.A.O.No. 307 of 2005 ------------------------------- Dated this the 10th June, 2009 J U D G M E N T Bhavadasan, J. The appellant whose application to re-admit the appeal which was dismissed for default, I.A.No.844/2005 in A.S.No.59/2004, on the file of Additional District and Sessions Court (Adhoc-II), Thodupuzha, is the appellant herein. 2. The appellant suffered a decree in O.S.No.226/1995 before the Munsiff Court, Devikulam. It was a suit for declaration of title, recovery of possession and for injunction. Plaintiff laid the suit on the allegation that she had title to the property and the defendant has no right to continue in possession . The defendant, on the other hand, contended that plaintiff has no right over the plaint schedule property and he is not liable to be evicted. On consideration of the rival FAO.No.307 of 2005 2 contentions, the trial court found that plaintiff has got title and right over the plaint schedule property and allowed the plaintiff to recover the possession of the same. The defendant carried the matter in appeal as A.S.No. 59/2004, before the Additional District & Sessions Court, Adhoc-II, Thodupuzha. 3. It is seen that the appeal was posted for hearing on several occasions but the appellant's counsel was not ready to argue the case. The case was finally posted for hearing to 2.7.2005, and on that day also, the prayer for adjournment was made. Since no sufficient cause was shown for the absence, the court below refused to adjourn the case and dismissed the appeal for default. Even though the appellant tried to have the appeal restored to file, she was not successful. 4. The learned counsel appearing for the appellant submitted that there was no default or omission on the part of the counsel in not representing the case on the date on which it was posted. It was due to reasons beyond his control that he FAO.No.307 of 2005 3 could not be present. The learned counsel also points out that the appellant was not liable to be evicted and that she was entitled to get the land assigned in her favour. He further submitted that one cannot presume that the counsel would have deliberately absented from the appellate court. Hence he prayed that an opportunity may be given to the appellant to have the case decided on merits. 5. Even though several opportunities were given to the counsel to argue the appeal, due to default on the part of the counsel, the case happened to be dismissed. On going through the judgment of the trial court, it is seen that appellant had claimed assignment of the property. In such circumstances, we feel that an opportunity be given to the appellant to have the appeal decided on merits. In the result, the appeal is allowed. The impugned order is set aside, and the matter is remanded back to the appellate court, to have the case decided on merits. The appeal FAO.No.307 of 2005 4 shall be posted for hearing to 13.7.2009, on which date, the appeal shall be heard. No further adjournment will be granted for hearing of the appeal. There will be no order as to costs. P.R.RAMAN, JUDGE P.BHAVADASAN , JUDGE. nj.