IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 22ND DECEMBER 2009 / 1ST POUSHA 1931 CMA.No. 204 of 1997() ----------------------------- AGAINST THE ORDER DATED 14/03/1997 IN IA 3077/95 IN AS.91/1987 of PRINCIPAL SUB COURT, PARAVUR .................... APPELLANT: (PETITIONERS) ------------------- 1. BALAKRISHNA PILLAI, SONOF PARAMESWARAN PILLAI, VELUTHEDATH, CHOORAKADU KARA, KIZHAKKAMBALAM. 2. RADHAMANI AMMA, WIFE OF BALAKRISHNAN PILLAI, ` KIZHAKKEDATHU VEEDU, -DO- -DO- BY ADV. SRI.K.N.NARAYANA PILLAI SRI.T.K.VENUGOPALAN RESPONDENTS: (RESPONDENTS) --------------------- 1. SIVASANKARAN NAIR, SON OF LATE PARAMESWARAN PILLAI, ATHIRAKKADAYIL, CHEKKASSERY, MAYPRATHUVEETTIL, NJARALLOOR KARA, KIZHAKKAMBALAM VILLAGE.(DIED) 2. RAMAKRISHNA PILLAI SON OF LATE PARAMESWARAN PILLAI -DO 3. JANAKI AMMA, D/O. DO. DO. 4. THANKAMMA, D/O. DO. DO. 5. BHARGAVI AMMA, W/O.KUMARAN NAIR, MOSABTANK, HYDERABAD , ANDHRA PRADESH. 6. K.NALINI, D/O. DO. DO. 7. K.BABU, S/O. DO. DO. C.M.A. NO.204/1997 *ADDL. RESPONDENTS IMPLEADED. 8. MALATHI.R. PILLAI, W/O. LATE RAMAKRISHNA PILLAI, MALATHY VILAS, MADRAS KAVALA, KOOVAPADY P.O., KOOVAPADY VILLAGE, (VIA) PERUMBAVOOR. 9. A.R.LATHIKA, D/O. LATE RAMAKRISHNA PILLAI DO. DO. 10. A.R.SUMESH, S/O. LATE RAMAKRISHNA PILLAI DO. DO. 11. A.R.RAJEEV, S/O. LATE RAMAKRISHNA PILLAI, MALATHY VILAS, MADRAS KAVALA, KOOVAPADY P.O., KOOVAPADY VILLAGE (VIA) PERUMBAVOOR. 12. A.R.SURESH, S/O. LATE RAMAKRISHNA PILLAI, MALATHY VILAS, MADRAS KAVALA, KOOVAPADY P.O., KOOVAPADY VILLAGE(VIA) PERUMBAVOOR. 13. V.K.AMMUKUTTY AMMA, W/O. PARAMESWARAN PILLAI, VALETHU VEEDU, PUNNORKODU KARA, PAZHAMTHOTTAM P.O. 14. V.P.THANKAMANI AMMA, D/O. PARAMESWSARAN PILLAI, DO. DO. 15. M.K.KRISHNAN NAIR, H/O. PADMINI AMMA, DO. DO. 16. SHIJU KUMAR, S/O. PADMINI AMMA, DO. DO. 17. SHINI, D/O. PADMINI AMMA, DO. DO. 18. V.P.RAVI PILLAI, S/O. PARAMESWARAN PILLAI, DO. DO. 19. P.R.NAIR, S/O. PARAMESWARAN PILLAI, DO. DO. 20. V.P.JAGADAMMA, W/O. NARAYANANKUTTY, THAYATH VEEDU, CHITHRAPUZHA KARA, IRIMBANAM P.O. 21. K.P.LEELAVATHY AMMA, W/O. SIVASANKARAN NAIR, KOTTAYATH HOUSE, KODUVAZHANGA, NEERIKODE P.O. ALUVA 683 511. 22. K.S.KRISHNA KUMAR, S/O. SIVASANKARAN NAIR, DO. DO. C.M.A. NO.204/1997 23. MOHAN DAS, S/O. SIVASANKARAN NAIR, DO . DO. ADDL.R8 TO R23 ARE IMPLEADED AS THE LEGAL HEIRS OF DECEASED R1 & R2 IN CMA AND SHRI.PARAMESWARAN PILLAI (R1 IN THE IMPUGNED ORDER) WHO WAS OMITTED TO BE ARRAYED AS RESPONDENT WHILE FILING CMA. AS PER ORDER DTD. 3.2.2009 IN IA. 3845/09. BY ADV. SRI.S.V.BALAKRISHNA IYER SRI.P.B.KRISHNAN SMT.SADHANAKUMARI EASWARI. THIS CIVIL MISC. APPEAL HAVING BEEN FINALLY HEARD ON 22/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP.NO.4509/1997 IN CMA.NO. 204/1997 DISMISSED 22.12.2009 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.S. TO JUDGE tss M.N.KRISHNAN, J ===================== C.M.A. No.204 OF 1997 ===================== Dated this the 22nd day of December 2009 JUDGMENT This appeal is preferred against the order in I.A.No.3077 of 1995 in A.S.No.91 of 1987. This application is one for restoration of the appeal dismissed for default. By the order dated 14.3.1997, the learned Sub Judge had observed that when the appeal has already been disposed of on merit there is no scope for restoration of the appeal. It is further written that the only remedy open to the aggrieved party is to file a second appeal against the appellate judgment. Now the contentions of the learned counsel for the appellants are as follows: Against the dismissal of the appeal, AS No. 91 of 1987 for default, they had preferred second appeal, S.A.No.20 of 1995 and a learned Judge of this Court by judgment dated 13.6.1995 held that the appellants can file for restoration of the appeal, which was dismissed for default. It is in pursuance of the same, I.A.No.3077 of 1995 is filed. 2. Now the grievance of the appellants is that the appellate court entertained that application and allowed the same. Thereafter it was hearing the appeal and in the process of hearing, it posted the matter for hearing on CMA 204/1997 -:2:- I.A.No.3077 of 1995 again and thereafter had passed an order whereby it is stated that since the appeal has been disposed of on merits, there is no scope for any restoration and thereby dismissed I.A.No.3077/1995. 3. Learned counsel for the other side would contend that even before the High Court disposed of the matter in June, 1995, the matter has been disposed of by the appellate court on merits by virtue of a judgment dated 23.6.1994. The learned counsel would contend that the appeal has been restored at the instance of the present appellants and after the restoration the matter has been heard and finally disposed of on 23.6.1994. So the matter to be looked into now is that whether any other application for restoration has been filed prior to the filing of I.A.No.3077 of 1995 and whether it had been allowed after hearing the parties and subsequently the appeal has been heard on merits and disposed of on merits. If this is done by the trial court, then it has to be stated that the said factum has not been brought to the notice of the High Court while disposing of the second appeal. If any sort of intimation has been given, certainly the High Court should not have directed the court to entertain a restoration application. So, the crux of the matter depends upon the question whether a restoration application has been filed prior to the filing of I.A.No.3077 of 1995 and that has been allowed and subsequently, the appeal has been disposed of on CMA 204/1997 -:3:- merits, as seen from the copy of the judgment dated 23.6.1994. If the answer to the question is in the affirmative then I.A.No.3077/95 cannot be entertained and it has only to be dismissed. So for the limited purpose of doing this, the order under challenge is set aside and the matter is sent back to the court below to consider the question whether any application prior to I.A.No.3077/95 to restore the appeal had been entertained and thereafter the appeal had been disposed of on merits. As I stated earlier, if the answer is in the affirmative nothing remains to be done and I.A.No.3077/95 has only to be dismissed. If it is otherwise, necessarily, I.A.No.3077/95 has to be heard on merits and disposed of in accordance with law. Parties are directed to appear before the appellate court on 14.1.2010 and let the matter be disposed of within two months from the date of appearance of the parties. CMA is disposed of accordingly. M.N.KRISHNAN, JUDGE Cdp/-