IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 20TH JANUARY 2011 / 30TH POUSHA 1932 FAO.No. 244 of 2010() ------------------------------- I.A.NO.132/09 AND I.A.NO.133/09 IN AS 126/2000 OF III ADDITIONAL DISTRICT COURT --------------------------------------- APPELLANTS/PETITIONERS/APPELLANTS/DEFENDANTS ---------------------------------------------------------------------------------- 1. RATHEESH KUMAR, RENJITH BAHAVANAM, KURAVILA, THAZHAM CHATHANNOOR. 2. J.RADHAMANY, RESIDING AT ....DO.... BY ADVS. SRI.GOPAKUMAR G. (ALUVA) SMT.ANUPAMA JOHNY RESPONDENT(S): RESPONDENT/PLAINTIFF ---------------------------------------------------------------- SAVITHRI, MANAMEL KUMARAVILASOM THAZHAM, CHATHANNOOR. BY ADV. SRI.V.VENUGOPALAN NAIR THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 20/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts HARUN-UL-RASHID,J. ------------------------------- F.A.O. NO.244 OF 2009 ------------------------------- DATED THIS THE 20TH DAY OF JANUARY, 2011 JUDGMENT Defendants 3 and 4 in O.S.No.197/97 on the file of the Munsiff-Magistrate's Court, Paravur are the appellants. The appeal is directed against the common order passed by the III Additional District Judge, Kollam in I.A.Nos.132/09 and 133/09 in A.S.No.126/2000. I.A.No.132/09 was filed for restoration of the appeal dismissed for fault on 27/5/2005 and IA.No.133/09 was filed for condonation of delay of 1616 days in filing the restoration application. The brief facts leading to the filing of this appeal are as follows: 2. O.S.No.197/97 was filed for permanent prohibitory injunction restraining the defendants from trespassing into the plaint schedule properties, preventing the plaintiff from taking yield and income from the plaint schedule properties, receiving rent from the plaint schedule shop building and also from interfering -2- F.A.O.No.244/2010 with the peaceful possession of the plaintiff and her two other children in the plaint schedule building. The plaintiff in the suit is the mother. Defendants 1 and 3 are her sons. Defendants 2 and 4 are the wives of defendants 1 and 3 respectively. The trial court by judgment and decree dated 31/8/2000 decreed the suit. Defendants 3 and 4 preferred A.S.No.126/2000 challenging the decree judgment passed by the trial court. 3. During the course of the appeal (A.S.No.126/2000) the Ist appellant/Ist defendant died during January 2004. On 27/5/2005 the Appellate Court dismissed the appeal for default finding that there was nobody to prosecute the appeal. Appellants 3 and 4 filed I.A. Nos.132/09 and 133/09 for restoration of the appeal dismissed for default and for condonation of the delay of 1616 days in filing the restoration application. The petitioners in the said petitions filed a detailed affidavit in support of the said IAs. It is averred that the lst appellant is the elder brother of the 3rd appellant. He was conducting the case before the trial court as well as the -3- F.A.O.No.244/2010 Appellate Court. Before the trial court he was examined as DW-1 for and on behalf of all the defendants. While so, he died during June, 2004. It is averred in the affidavit that thereafter the wife of the deceased appellant, who is the 2nd appellant, continued to conduct the case. It is stated that it was she who used to met the Lawyer and instruct him as and when necessary. It is also averred in the affidavit that she was prosecuting the case. 4. The 3rd appellant in the affidavit also referred to the physical condition of his wife, who is the 4th appellant. It is averred that she was suffering from serious ailments, that she had undergone surgery on her breast and uterus and having heart problems. It is further stated that she is an acute diabetic patient and she was admitted in the Medical College on several occasions and continues medical check up and treatment even now. He was under the bona fide belief that his elder brother and after his death, his wife is vigilantly conducting the case on behalf of the appellants 3 and 4. It is further stated in the affidavit that she was seriously -4- F.A.O.No.244/2010 conducting the case on behalf of all of them. Therefore there was no personal enquiry regarding the progress of the case. Petitioners in the IAs further sweared in the affidavit that in fact their sister-in- law was deliberately restrained from attending the Advocate's Office and giving instruction to the Advocate. She did not file any application for impleading the legal heirs of the deceased lst appellant, who is none other than her husband. 5. In these circumstances, it is further averred that during October, 2009 he went to the Advocate's Office and enquire about the matter and then only he came to know that Sri Viswanathan, Advocate, who was appeared for and on behalf of the appellants, also expired. But further he came to understand that the appeal was dismissed for default on 27/5/2005. It is also stated that the Lawyer used to communicate the progress of the suit only to the lst appellant and after his death, to the 2nd appellant, who is his wife. For all these reasons, the delay of 1616 days in filing the application for restoration occurs. -5- F.A.O.No.244/2010 6. The court below by the impugned order, did not accept various facts and circumstances pleaded by the petitioners in the IAs. The Appellate Court observed that the above-said facts are not sufficient reasons to condone the delay of 1616 days in filing the restoration application and for restoring the appeal dismissed for default as there is gross negligence on the part of the petitioners in proceeding with the appeal. The court held that the petitioners were not diligent in proceeding with the appeal which was filed in the year 2000 and that the petitions are filed without any bona fides and only to harass the respondent. 7. I have gone through the averments in the affidavit. In so many cases there are more than one appellant and one of the appellants used to instruct the Lawyer and conduct the case for and on behalf of the other appellants. In this case there are four defendants. They filed written statement jointly. The lst defendant conducted the case before the trial court. He was examined as DW1. It also shows that the lst defendant was conducting the case -6- F.A.O.No.244/2010 for and on behalf of the other defendants. During the pendency of the appeal the lst appellant died. Subsequently, the Lower Appellate Court dismissed the appeal for default finding that nobody has chosen to prosecute the appeal. The deponent's case is that after the death of his brother, his wife was prosecuting the case and he only came to know that she supported the plaintiff in the suit and therefore did not instruct the lawyer who was conducting the appeal. Yet another reason in this case is that her lawyer, who conducted the case is also dead. All these circumstances may lead to the fact that the appeal happened to be dismissed for default for the reasons stated in the affidavit filed in support of the above IAs. In the circumstances, unless the appellants are given an opportunity to contest the appeal on merits, they will be put to irreparable injury and severe hardship. The reasons stated in the affidavit for condoning the delay in filing the restoration application may not be fully correct. The only limited prayer of the petitioners is that their appeal may be considered on merits. I think that the learned III -7- F.A.O.No.244/2010 Additional District Judge ought to have afforded an opportunity to the petitioners to contest the appeal on merits at least on terms. The findings entered by the court below that there is gross negligence on the part of the petitioners in proceeding with the appeal, that they were not diligent in proceeding with the appeal and that the petitions are filed without any bona fides, are without appreciating the facts and circumstances of the case. In the circumstances, it cannot be said that the IAs. are filed without any bona fides. In the interest of justice, I am inclined to afford an opportunity to the petitioners to contest the case on merits. 8. The impugned common order passed in I.A.Nos.132/09 and 133/09 is set aside. I.A.Nos.132/09 and 133/09 are allowed on condition that the appellants shall pay an amount of Rs.3,000/- (Rupees three thousand) as cost to the counsel for the respondent within a period of ten days from today. If the cost is paid within the time stipulated above, the Appellate Court shall hear and dispose of the appeal in accordance with law, within a -8- F.A.O.No.244/2010 period of six months from the date of receipt of the copy of this judgment. Appeal is allowed. No order as to costs. HARUN-UL-RASHID, Judge. kcv.