IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 28TH AUGUST 2008 / 6TH BHADRA 1930 CMA.No. 196 of 1999() --------------------- AGAINST THE ORDER DATED 06/01/1999 IN IA 635/96 IN AS.434/1994 of SUB COURT,NEYYATTINKARA .................... APPELLANTS/ PETITIONERS: ------------------------------- 1. THAMARIS CHRISTINAL, MEKKUMKARA NELLIVILA PUTHEN VEEDU, KAVIYOORKONAM, KUNNATHUKAL DESOM, KUNNATHUKAL VILLAGE. 2. THAMARIS SAROJINI, OF -DO- -DO- 3. THAMARIS RADHA, OF -DO- -DO- 4. THAMARIS SUSEELA, OF -DO- -DO- 5. NALLATHAMPI NADAR SUNDARA RAJAN OF -DO- -DO- 6. SUMA, D/0. RADHA, AGED 14 (MINOR), OF -DO- -DO- (6TH APPELLANT IS IMPLEADED AS ADDL. 6TH APPELLANT, BEFORE THE COURT BELOW, WHO IS THE LEGAL REPRESENTATIVE OF DECEASED 3RD APPELLANT AND IS REPRESENTED BY THE 1ST APPELLANT AS PER ORDER IN I.A. 814/98 DT. 16.11.98.) BY ADV. SRI.M.R.ANANDAKUTTAN SRI.R.T.PRADEEP RESPONDENTS/COUNTER PETITIONERS: ------------------------------------------- 1. ABRAHAM ANOSE, VATTAKARIMOOLA PUTHEN VEEDU, KUNNATHUKAL DESOM, KUNNATHUKAL VILLAGE (DIED) 2. RADHA, D/O. ANOSE RESIDING AT THOTTIKARA, NEAR RAILWAY STATION, NORTHERN SIDE, MURIYANKARA DESOM, PARASSALA VILLAGE, FROM THE DO. 3. HARIS NADAR, KAVIYOORKONAM MEKKUMKARA THAKIDI VILA PURAYIDOM, KUNNATHUKAL DESOM 4. RAHEL MARIYAMMAL, NELLIVILA PUTHEN VEEDU KAVIYOORKONAM MEKKUMKARA OF DO. DESAM 5. MARIYAMMAL CHANDRIKA, OF DO. 6. RAHEL NESAMMA, RESIDING AT MEKKUMKARA PURAYIDOM UNDANKOTTUKONAM, CHERIYAKILLA DESOM KUNNATHUKAL VILLAGE 7. RAHEL CHELLAMMA, KAVIYOORKONAM MEKKUMKARA NELLIVILA PURAYIDOM KUNNATHUKAL DESOM (DIED) 8. ANNAL RAHEL, KURUSADI ROADARIKU PUTHEN VEEDU CHERIYAKOLLA DESOM (DIED) 9. SAMUEL SYLAN, OF DO. 10. SAMUEL SIMON, OF DO. 11. DASAN SOMAN, KAVIYOORKONAM, MEKKUMKARA NELLIVILA PUTHEN VEEDU, KUNNATHUKAL DESOM 12. MARIYAL CHELLAMMA, PUNNAKARI VEEDU KURISADI, CHERIYAKOLLA DESOM, KUNNATHUKAL VILLAGE (DIED ON 7.3.93) *(ADDL. RESPONDENTS 16 TO 19 ARE L.Rs OF DECEASED 12TH RESPONDENT) 13. KUTTAN NADAR NELSON NADAR, THAKIDIVILA PUTHEN VEEDU KUNNATHUKAL DESOM 14. KUTTAN NADAR THOMSON, OF DO. (DIED) 15. KUTTAN NADAR DASAYYAN OF DO. *ADDL. 16. FRANCHI, PUNNAKKARI VEEDU KURISADI, CHERIYAKOLLA DESOM, KUNNATHUKAL VILLAGE *ADDL. 17. SOMAN OF DO. *ADDL.18. LINGSTON OF DO. *ADDL. 19. CHELLAMMA MOLI, OF DO. (DIED) (RESPONDENTS 2,9,10,17 TO 19 ARE RECORDED AS Lrs OF DECEASED RESPONDENTS 1,8 AND 16 AS PER ORDER ON IA 1081/97 DT. 19.2.98) *ADDL. R.20. AMBIKA, D/O. RAPHEL CHELLAMMA NELLIVILA PUTHEN VEEDU MEKKINKARA KAVIYOORKONAM NIALAMOODU, KARAKANA P.O. (ADDL. R.20 IS IMPLEADED AS THE LEGAL REPRESENTATIVE OF R7 AS PER ORDER DT. 28.8.08 IN C.M.P. NO.1936/03) *ADDL. R.21. JOHN BRIGHT, POVANNARATHAL VEEDU THAKIDIVLA NIALMAMOODU, KARAKONAM, P.O. (ADDL. R.21 IS IMPLEADED AS THE LEGAL REPRESENTATIVE OF R14 AS PER ORDER DT. 28.8.08 IN C.M.P. NO.1933/03) BY ADV. SRI.V.N.ACHUTHA KURUP (SR.) FOR ADDL.R14 SRI.B.S.SWATHI KUMAR FOR ADDL.R14 SRI.K.HARILAL FOR ADDL.R21 THIS CIVIL MISC. APPEAL HAVING BEEN FINALLY HEARD ON 28/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- C.M.A. No. 196 OF 1999 --------------------- Dated this the 28th day of August, 2008 JUDGMENT This appeal is preferred against the order of the Sub Judge, Neyyanttinkara, in I.A 635/96 in A.S 434/94. A.S 434/94 was dismissed for default. It is to restore that appeal, I.A. 635/96 was filed. The court below dismissed that application for the reason that there was failure to establish sufficient cause for their non appearance which had resulted in the dismissal of the appeal. 2. Learned counsel for the appellants would submit before me that a lawyer from Thiruvananthapuram was entrusted to conduct the case and it was on account of the failure of the clerk to do things properly or a proper representation, the matter happened to be dismissed for default. I am informed that the suit was originally one for declaration and for putting up of boundaries and later there is a prayer for partition of the property. A preliminary decree has been passed by the court below and it is the subject matter of the challenge in appeal before Sub Court, Neyyattinkara. 3. The principles to be followed when a matter is dismissed for default has been succinctly laid down in the decision reported in CMA No.196/99 2 Sreedhara Kurup v. Mickel [1968 KLT 599]. This court held as follows: “It is largely a matter of wise discretion to be exercised by the Court bearing in mind the wholesome principle that the right of a party to be heard should be negatived only if there is gross negligence or gross carelessness and that if some steps have been taken and application for restoration has been made with some diligence and some evidence adduced making out a sufficient cause for absence, restoration should be ordered, minor misconduct or laches being corrected by the common curative of costs. The brooding spirit of natural justice must be in the background while ascertaining whether there is sufficient cause. A strict and narrow construction defeats the ends of justice which can be reached only after a fair fight between the disputants.” 4. Bearing this wholesome principle in mind and the grounds averred in the affidavit, I feel interest of justice requires an opportunity to be given to the appellants to prosecute the case. Therefore, the order under challenge is set aside and the appeal is allowed. It is brought to my notice that R7 and R14 are dead. R20 is the legal representative of R7 and R21 is the legal representative of R14. They are impleaded as parties in the appeal. It is submitted that R21 alone is not the legal representative of R14. The other legal heirs also be impleaded before the matter is heard by the court. It is still submitted that some other respondents are also dead. I feel CMA No.196/99 3 since the matter is being restored and the appeal is being prosecuted, the appellants can implead the legal representative of the persons who are no more and on completion of the same, they shall proceed to argue the appeal. The court below shall dispose of the matter in accordance with law. Parties are directed to appear before the court below on 20.10.08. M.N.KRISHNAN, JUDGE vps CMA No.196/99 4