IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 5TH AUGUST 2009 / 14TH SRAVANA 1931 FAO.No. 192 of 2008() --------------------- AS.42/2004 of SUB COURT, PALA .................... APPELLANT/ PETITIONER- APPELLANT/PLAINTIFF:- --------------------------------------------------------- ABRAHAM, S/O.JOSEPH, 65 YEARS RESIDING AT KUTHUVALECHEL HOUSE, VELIYANNOOR KARA, DO VILLAGE. BY ADV. MR. P.C.HARIDAS RESPONDENTS/COUNTER PETITIONERS- RESPONDENTS/DEFENDANTS:- --------------------------------------------------------------------------------- 1. JOSEPH, KONDADUMPADAVIL HOUSE VELIYANNOOR KARA AND VILLAGE. 2. RAMACHANDRAN, KOCHUPURAKAL HOUSE VELIYANNOOR KARA AND VILLAGE 3. OMANA, W/O.RAMACHANDRAN, KOCHUPURACKAL HOUSE, VELIYANNOOR KARA AND VILLAGE. ADV. MR. SHAJI THOMAS PORKKATTIL FOR R1 MR. T.V.VINU FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 05/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. -------------------------------------------------- F.A.O. No. 192 of 2008 ---------------------------------------------------- Dated this the 5th day of August, 2009. JUDGMENT The plaintiff in O.S. No. 253 of 2000 on the file of the Munsiff's Court, Pala is the appellant in this appeal filed under Order XLIII Rule 1(t) C.P.C. The said suit filed by the appellant was one for a prohibitory as well as a mandatory injunction. The suit after trial, was dismissed by the trial court. Aggrieved by the judgment and decree passed by the trial court, the appellant preferred an appeal before the Sub Court, Pala as A.S. No. 42 of 2004. The appeal was dismissed for default under Order XLI Rule 17 C.P.C on 03.12.2007. Thereupon the appellant filed I.A. No. 11 of 2008 for re-admission of the appeal under Order XLI Rule 19 C.P.C. As per the impugned order dated 22.01.2008, the said application has been dismissed. Hence this appeal. 2. The learned counsel appearing for the respondent vehemently opposed the appeal submitting inter alia as F.A.O. No. 192/2008 : 2 : follows:- The appellant was guilty of gross latches. Even assuming that he was laid up with viral fever, nothing prevented him from giving proper instructions to his advocate and the presence of the appellant was not at all necessary before the lower appellate court. Moreover, the trial court has given valid reasons for dismissing the suit. 3. The above objection raised by the counsel for the respondent are the very same grounds projected by the lower appellate court to dismiss the application filed under Order XLI Rule 19 C.P.C. But the fact remains that the plaintiff's appeal has not been disposed of on merits. The reasons stated by the trial court for dismissing the suit may not be relevant to dismiss the application to re-admit the appeal which was dismissed for default. The lower appellate court has every authority to re-appreciate the evidence and come to its own conclusion after hearing the rival contentions of both sides. I am therefore of the view F.A.O. No. 192/2008 : 3 : that the appeal filed by the appellant before the court below deserves to be disposed of on merits. But at the same time, the conduct of the appellant in not giving proper instructions to his counsel deserves to be penalised. Accordingly, this appeal will stand allowed and the appeal filed by the appellant herein before the lower appellate court will stand restored to file on the appellant paying a sum of Rs.1000/- as cost to the respondents through their counsel within two weeks from today. If the cost as ordered above is not paid within the time granted, this appeal will stand dismissed and the impugned order will stand confirmed. Post after two weeks. Dated this the 5th day of August, 2009. V. RAMKUMAR, JUDGE. rv F.A.O. No. 192/2008 : 4 :