IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 15TH JANUARY 2009 / 25TH POUSHA 1930 FAO.No. 275 of 2008 --------------------- ( AS.103/2005 of ADDL.SUB COURT, THALASSERY ) APPELLANT/PETITIONER/APPELLANT ------------------------------------------ KOVVAPRATH KUNHAMINA, D/O.CHERIYAMU, NR.SHADULIPALLI, P.O.KOTTALI, KANNUR TALUK & DIST. BY ADV. SRI.P.U.SHAILAJAN RESPONDENTS/RESPONDENTS/RESPONDENTS -------------------------------------------------------- 1. CHEKKIYIL SUHARA, W/O.MOIDEEN. 2. CHEKKIYIL NADIRA, D/O.SUHARA. (BOTH ARE RESIDING AT NADIRA MANZIL, NR.SHADULIPALLI, P.O.KOTTALI, KANNUR TALUK & DISTRICT). 3. SPECIAL SECRETARY, PUZHATHI GRAMA PANCHAYATH, PUZHATHI, KANNUR TALUK. 4. KALLEN NARAYANAN, S/O.EDACHERIYAN AMBU, NR.SHADULIPALLI, P.O.KOTTALI. 5. P.M.MUHAMMED SALI, NR.SHADULIPALLI, P.O.KOTTALI. R1, R2 AND R5 BY ADV. SRI.A.MOHAMED MUSTAQUE AND BY ADV. SRI.KAUSER EDAPPAGATH THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 15/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & P.R. RAMACHANDRA MENON, JJ. ........................................................................ F.A.O.No. 275 OF 2008 & C.M. APPLICATION No. 2117 OF 2008 ......................................................................... Dated this the 15th January, 2009 J U D G M E N T Ramachandra Menon, J. : The order passed by the Sub Court, Thalassery dismissing I.A.No.4632 of 2007 filed by the appellant/petitioner, seeking to restore A.S.No.103 of 2005, which was dismissed for default on 19.10.2007, is under challenge in this appeal. 2. The appellant/petitioner had in fact challenged the judgment and decree passed by the Munsiff's Court, Kannur in O.S.No.94 of 2002 by filing A.S.No.103 of 2005 before the Sub Court, Thalassery, where notice was ordered and respondents had entered appearance through their counsel. On 19.10.2007, the day fixed for hearing, there was no representation for the appellant, which led to the dismissal of the appeal for default. I.A.No.4632 of 2007 was filed before the court below under Order IX Rule 9 of the Code of Civil Procedure, seeking to restore the F.A.O.No. 275 OF 2008 & C.M. APPLICATION No. 2117 OF 2008 2 appeal, explaining the reasons for the absence on the scheduled date of hearing. However, it is seen from the impugned order that the court below was not satisfied with the reasons stated in the affidavit filed in support of the Interlocutory Application and accordingly, it was dismissed vide order dated 27.02.2008, which is subjected to challenge in this appeal. 3. In view of the delay in filing the appeal, C.M.Application No.2117 of 2008 was filed seeking to condone the same, wherein urgent notice was ordered on 06.11.2008, pursuant to which, the respondents have entered appearance. We heard both the sides. We find that the delay occurred in filing the appeal has been satisfactorily explained and hence the same is condoned. 4. On going through the merits of the case, it is seen that the impugned order has been passed by the court below, observing that no valid reason is stated by the appellant/petitioner to restore the appeal. But it has been specifically stated by the appellant/petitioner in the affidavit filed in support of the Interlocutory Application No.4632 of 2007 that F.A.O.No. 275 OF 2008 & C.M. APPLICATION No. 2117 OF 2008 3 the counsel was actually engaged in the Family Court, Kannur in O.P.No.314 of 2007 posted on that date and as such, he had made alternate arrangements by entrusting the file to his colleague to represent the matter before the court and to seek adjournment, who however omitted to represent the matter before the court when the case was called up, which led to the dismissal of the appeal for default. The bonafides of the appellant/petitioner is not seriously doubted or questioned, particularly when no counter affidavit is stated as filed before the court below, opposing the reliefs sought for. 5. Considering the entire facts and circumstances, we find that the explanation offered by the appellant/petitioner as to the absence of the counsel on the date fixed for hearing is proper. In the above circumstances, we set aside the impugned order. I.A.No. 4632 of 2007 in A.S.No. 103 of 2005 of the Sub Court, Thalassery is allowed. The appeal is restored to the file, for disposal on the merits. In view of the sequence of events and pendency of the matter for quite long, we make it clear that the F.A.O.No. 275 OF 2008 & C.M. APPLICATION No. 2117 OF 2008 4 appeal (A.S.No. 103 of 2005 on the file of the Sub Court, Thalassery) would be finally heard and disposed of, as expeditiously as possible, and at any rate, within a period of six months from today. Both the parties shall appear before the court below on 02.03.2009. The appeal is allowed as above. No order as to costs. KURIAN JOSEPH, JUDGE. P.R. RAMACHANDRA MENON, JUDGE. lk