IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 7TH JULY 2011 / 16TH ASHADHA 1933 FAO.No. 7 of 2008() ----------------------- AGAINST THE ORDER DATED 26/07/2006 IN IA.831/2006 IN AS.112/1997 of DISTRICT COURT, THIRUVANANTHAPURAM .................... APPELLANT/PETITIONER: ------------------------------- HELEN THULASIBHAI, BETHAIL VILAKATHU VEEDU, MUTTAKAD DESOM, THIRUVALLAM VILLAGE. BY ADV. SRI.DINESH R.SHENOY RESPONDENT(S): RESPONDENTS: --------------------------------------- 1. BENSON ALBIN PRAKASH, SEON KUNNU, BETHAIL VILAKATHU BATHAIL VEEDU, MUTTAKAD DESOM, THIRUVALLAM VILLAGE. 2. BENSON JAYAPRAKASH, -DO- -DO-. * 3. BENSON EDWIN PRAKASH, -DO- -DO-. (DIED) 4. BENSON MINNI, -DO- - DO-. 5. BENSON BABU, -DO- -DO-. 6. BENSON JOSEPRAKASH, -DO- -DO-. ** 7. DECASTOR VINCENT, BADHAIL VILAKATHU VEEDU, MUTTAKKAD DESOM, THIRUVALLAM VILLAGE. (DIED) * ADDL.R8 TO R10 IMPLEADED 8. KUMARI REETHA, AGED 46, W/O. LATE BENSON EDWIN PRAKASH, RESIDING AT PRAKASH BHAVAN, KOVALAM KALLAN SAIPU ROAD, THIRUVALLAM VILLAGE, KOVALAM. svs ..............2/-... ...2... F.A.O. NO.7/2008 9. ARUN PRAKASH, AGED 15, S/O.LATE BENSON EDWIN PRAKASH, RESIDING AT PRAKASH BHAVAN, KOVALAM KALLAN SAIPU ROAD, THIRUVALLAM VILLAGE, KOVALAM.(MINOR) 10. ANU PRAKASH, AGED 11, D/O.LATE BENSON EDWIN PRAKASH, RESIDING AT PRAKASH BHAVAN, KOVALAM KALLAN SAIPU ROAD, THIRUVALLAM VILLAGE, KOVALAM.(MINOR) * ADDL R8 TO R10 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 3RD RESPONDENT AS PER ORDER DATED 08/07/2009 IN I.A. NO.5525/2008. ADDL R8 IS APPOINTED AS GUARDIAN OF MINOR RESPONDENTS ADDL. R9 AND R10 AS PER ORDER DATED 08/07/2009 IN I.A. NO.5527/2008. ** ADDL R11 TO R13 IMPLEADED 11. SUNITHA, AGED 21, D/O. LATE DECASTOR VINCENT, T.C. 35/791, KOCHUTHOPPU, PUTHUVAL, VALAKKADAVU, THIRUVANANTHAPURAM. 12. PRIYANKA, AGED 18, DO. DO. 13. VINEETHI, AGED 15, -DO- -DO- (MINOR) ** IMPLEADED AS ADDITIONAL RESPONDENTS 11 TO 13 AS THE LEGAL REPRESENTATIVES OF THE DECEASED 7TH RESPONDENT AS PER ORDER DATED 22/07/2009 IN I.A. NO.4/2009. ADDL. R11 IS APPOINTED AS GUARDIAN OF MINOR RESPONDENT ADDL. R13 AS PER ORDER DATED 22/07/2009 IN I.A. NO.6/2009. *** ADDL. R14 IMPLEADED 14. DECASTOR DUBERY, SEON KUNNU, BETHAIL VILAKATHU VEEDU MUTTAKAD DESOM, THIRUVALLAM VILLAGE IS IMPLEADED AS ADDL. R14 AND SINCE HE DIED PENDING APPEAL HIS LEGAL REPRESENTATIVES WHO ARE ALREADY ON THE PARTY ARRAY AS ADDL. R11 TO R13 ARE RECORDED AS SUCH VIDE ORDER DATED 02/07/2009 IN I.A. NO.2059/2009. R1,2,4 TO 6 BY SRI.P.KESAVAN NAIR R8 & R9 BY ADV. SRI.K.G.CLEETUS THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 07/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs P.BHAVADASAN, J. ---------------------------- F.A.O.No. 7 of 2008 --------------------------------- Dated this the 7th day of July, 2011 JUDGMENT The appellant is the plaintiff in O.S.No.984/1993 on the file of the IIIrd Additional Munsiff's Court, Thiruvananthapuram. Suit was dismissed. The plaintiff carried the matter in appeal as A.S.No.112/1997 before the District Court, Thiruvananthapuram. 2. The appeal was dismissed for default on 19.01.2001 on the ground of non representation. Appellant had filed I.A.No.2514/2005 to restore the appeal, which was dismissed for default, together with I.A.No.2515/2006 for condonation of delay in filing the application for restoration. On 09.03.2006, it is pointed that the delay condonation petition was dismissed on the ground that steps had not been taken inspite of the specific directions issued to that effect. I.A.No.831/2006 was filed by the appellant pointing out that the grounds for dismissing the delay condonation was erroneous and steps had in fact been taken on 07.12.2005 as is evidenced from Application No.A-10328/2005. Unfortunately for the appellant, I.A.No.831/2006 also came to F.A.O.No. 7 of 2008 2 dismissed for default. Therefore, the plaintiff has came up before this Court. 3. The suit of 1993 is still getting dragged for no justifiable reasons. In the affidavit in support of I.A.No.831/2006, it was pointed out that reasons given for dismissing the delay condonation petition was not correct and the direction to take steps had been complied with. 4. Since it is seen that the steps had in fact been taken and order had been complied with the dismissal of delay condonation petition is unsustainable. Normally, this court has to send back the matter to the lower appellate court for fresh consideration of the restoration of the appeal. However, considering the passage of time, it is felt that the said technicalities need not stand in the way and this Court will be justified in allowing the delay condonation petition and also restore the appeal to file. In the result, the appeal is allowed and the impugned orders are set aside. The lower appellate court is directed to take back A.S.No.112/1997 on file and dispose of it in accordance with law on merits, after hearing both sides, as expeditiously as possible, at F.A.O.No. 7 of 2008 3 any rate within a period of six months from the date of appearance of the parties. The parties shall appear before the lower appellate court on 27.07.2011. There will be no order as to costs. P.BHAVADASAN, JUDGE. ln