IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 30TH JUNE 2011 / 9TH ASHADHA 1933 FAO.No. 173 of 2011() --------------------- I.A. NO.724/11 IN AS.129/2005 of PRINCIPAL SUB COURT,ATTINGAL .................... APPELLANT: ------------------- KESAVAN VISWAMBHARAN THERIVILAPUTHAN VEEDU, PORUNTHAMON, PULIMATHU VILLAGE, THIRUVANANTHAPURAM DISTRICT. BY ADVS. SRI.M.R.RAJESH SRI.K.M.ALEXANDER RESPONDENT(S): --------------- 1. NANDI GRANITES PVT.LTD REPRESENTED BY ITS DIRECTOR R.SEKHAR, HOODI APARTMENTS, GROUND FLOOR NO.120,BANGALORE KARNATAKA STATE, REPRESENTED BY POWER OF ATTORNEY HOLDER SANTHOSH, SANTHOSH BHAVAN, KAYAMKULAM ALAPPUZHA. 2. SUGUNAN, CHITHIRAKAILASAM MUKKU, AROOR DESOM, KILIMANOOR VILLAGE REP BY THE POWER OF ATTORNEY HOLDER JOY A.G. PRATHEEKSHA PORUNTHAMON, PULIMATH VILLAGE, KILIMANOOR THIRUVANANTHAPURAM DIST. R1 BY ADV. SRI.LIJU. M.P. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 30/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: FAO.No. 173 of 2011 APPENDIX APPELLANT'S ANNEXURES: A : COPY OF THE I.A. 729/2011IN A.S. 129/2005 OF THE SUB COURT ATTNGAL. B : COPY OF THE I.A. 724/2011 IN A.S. 129/2005. C : COPY OF THE JUDGMENT DATED 09/06/2011 IN O.P. (CIVIL) 1636/2011. D : COPY 1 ORDER DATED 30.03.2011 IN I.A. 724/2011 IN A.S. 129/2005 OF THE SUB COURT, ATTINGAL. RESPONDENT'S ANNEXURES: NIL //TRUE COPY// P.A. TO JUDGE smvd HARUN-UL-RASHID, J --------------------------------------- F.A.O. NO.173 of 2011 --------------------------------------- Dated this the 30th day of June, 2011 JUDGMENT The appellant in this appeal is the appellant in A.S. No.129 of Sub Court. Attingal. The case was posted on 29.03.2011 for hearing. On that day the Counsel for the appellant sought an adjournment. Annexure - A is the petition for adjournment. The court did not consider Annexure - A.( see para 3 of the OP). The court observed that sufficient opportunity was given to the appellant, therefore dismissed the appeal for default on 29/03/2011. On the same day the petitioner had filed IA No.724/11 seeking to re-admit the appeal dismissed for default. Annexure-D order passed in IA No.724/2011, is under challenge. 2. In Annexure - D order, the court observed that sufficient opportunity was given to the appellant to argue the case and that the case was protracted by the appellant stating one or other reasons. The court also observed that F.A.O. NO.173 of 2011 -: 2 :- this is a case where there is a direction issued by the District Court to dispose of the same before summer vacation and that the petition is filed without any bonafides and is devoid of any merit. 3. The learned counsel for the respondent brought to the notice of this court that this appeal was filed in the year 2005 and is pending for the last 6 years. The counsel also submits that on two earlier occasions, appeal was dismissed for default and the court was pleased to restore the same on the application of the appellant. The counsel submits that I.A. 724/11was filed without any bonafides and the only intention is to protract the case to the extent possible. The IA was dismissed on 30.03.2011. The IA is seen filed on 29/03/2011. The court below dismissed the application on the next day. It is clear that no opportunity has been given to the appellant to present IA No.724/2011 on merits. No opportunity of hearing was afforded to the parties. Therefore this court is of the view that the appellate court shall consider IA 724/11 afresh after affording an opportunity F.A.O. NO.173 of 2011 -: 3 :- of hearing to both sides. Hence Annexure - D order dismissing I.A. 724/11 is set aside. The appellate court shall try and dispose of IA No.724/11 within a period of 3 weeks from the date of receipt of the copy of this judgment. The appeal is disposed of as above. No order as to costs. HARUL-UL-RASHID, JUDGE. smvd