IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 28TH AUGUST 2008 / 6TH BHADRA 1930 FAO.No. 73 of 2004() -------------------- AGAINST THE ORDER DATED 07/08/2003 IN IA 1572/98 IN LAR.216/1994 of SUB COURT, CHERTHALA .................... PETITIONER/PETITIONER/CLAIMANT ------------------------------ DR.K.J.MADHUSOODANAN,KAVAKKATTU VEETTILL NEDUMKANDAM P.O.,IDIKKI DISTRICT FROM KAVAKKATTU THARAYIL,PATTANAKKADU VILLAGE,CHERTHALA. BY ADV. SRI.J.OM PRAKASH RESPONDENTS: RESPONDENT/RESPONDENT/STATE ---------------------------------------- THE KERALA STATE REPRESENTED BY THE SPECIAL TAHSILDAR(LA),NATIONAL HIGH WAY, CHERTHALA. BY GOVERNMENT PLEADER, SRI.LAKSHMINARAYAN THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 28/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R.RAMAN & T.R.RAMACHANDRAN NAIR, JJ. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ F.A.O.No.73 of 2004 ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Dated this the 28th day of August, 2008 J U D G M E N T P.R.RAMAN, J. This is an appeal arising out of an order passed in I.A.No.1572/1998 in L.A.R.No.216/1994 dated 07/08/2003 of the Sub Court, Cherthala. I.A.No.1572/1998 was one for the restoration of the reference which is answered in the absence of the claimant. The appellant was the claimant in a land acquisition proceedings. It was referred for adjudication of his claims for enhancement. But the same was answered in his absence. The contention of the appellant was that he did not get notice and, his brother who accepted notice was not in good terms with him. According to him, he was away from Cherthala for about 15 years. This was opposed by the State. PW.1 was examined on the side of the appellant. The question arose for consideration as to whether the ground urged for contending the appeal was sufficient to condone the delay to restore the reference application. It was found that summons was served on one Raju, who accepted notice on behalf of the appellant, that means, the appellant did not accept F.A.O.No.73/2004 -:2:- any notice. Whether or not Raju was authorised by the appellant is not known. At any rate the appellant had a case that Raju was not in good terms with the appellant and, therefore, he did not get actual notice. Though, the appellant approached the Court with a delay of 1245 days, the court ought to have taken a lenient view in the matter in the face of the contention that he did not get actual notice. At the same time, the delay occurred in approaching the court for restoration shall not itself give a better claim for the appellant to claim any interest. His own default in approaching the court on an earlier date is sufficient to deny him the interest for a period prior to the filing of the application. In the factual situation, therefore, we find that an opportunity to adduce evidence and to contest the matter on merits should be given to the appellant. Hence, we set aside the order under appeal and restore the L.A.R on the following conditions:- 1. The appellant shall pay by way of cost an amount of Rs.1,500 to the State and this amount shall be deposited in the court below within a period of three weeks. 2.The appellant will not be entitled for any interest for the period of 1245 days, which is the period of delay in filing F.A.O.No.73/2004 -:3:- the application for restoration, in case any enhancement is granted in the L.A Reference. The appeal is disposed of as above. P.R.RAMAN, Judge T.R.RAMACHANDRAN NAIR, Judge ms