IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 3RD OCTOBER 2008 / 11TH ASWINA 1930 FAO.No. 216 of 2008() --------------------- I.A. NOS.1321 & 1322/08 IN AS.68/1995 of V ADDL. DISTRICT COURT, ERNAKULAM .................... APPELLANT/PETITIONERS/DEFENDANTS ---------------------------------------------------- 1. SALI JOSE W/O. LATE JOSE, AGED 55 YEARS, CHAKKALAKKAL HOUSE, POTHANIKADU KARA, POTHANIKAD VILLAGE. 2. JETY JOSE D/O. LATE JOSE, AND W/O. REJI JOSEPH CHAKKALAKKAL HOUSE, POTHANIKADU KARA, POTHANIKAD VILLAGE. 3. TOM JOSE S/O. LATE JOSE, AGED 26 YEARS, CHAKKALAKKAL HOUSE, POTHANIKADU KARA, PONTHANIKAD VILLAGE. 4. ISSAC S/O. PPAILEE, KUNNUMPURATH HOUSE, POTHANIKADU KARA, POTHANIKAD VILLAGE. 5. KUNJAPPAN S/O. AYYAPPAN, KOCHUKUDIYIL HOUSE, PONTHANIKAD KARA, PONTHANIKKAD VILLAGE. BY ADV. SRI.S.SREEKUMAR SRI.S.VAIDYANATHAN RESPONDENTS/ RESPONDENTS/PLAINTIFFS ------------------------------------------------- 1. KURIAN S/O. ITHAPPIRY, CHEMBAKASSERIYIL HOUSE, POTHANIKADU KARA, POTHANIKAD VILLAGE. 2. JOHN S/O. CHACKO, RETHAPPILLIL HOUSE, POTHANIKADU KARA, POTHANIKAD VILLAGE 3. ANNAMMA W/O. VARKEY, CHEMBAKASSERIYIL HOUSE, POTHANIKADU KARA POTHANIKAD VILLAGE (DIED). 4. ISSAC S/O. VARKEY, CHEMBAKASSERIYIL HOUSE, POTHANIKADU KARA, PONTHANIKAD VILLAGE. 5. THOMAS S/O. VARKEY, CHEMBAKASSERIYIL HOUSE, POTHANIKADU KARA, PONTHANIKAD VILLAGE. 6. CHINNAMMA D/O. VARKEY, CHEMBAKASSERIYIL HOUSE, POTHANIKADU KARA, POTHANIKAD VILLAGE. 7. JOSEPH S/O. VARKEY, CHEMBAKASSERIYIL HOUSE, POTHANIKADU KARA, POTHANIKAD VILLAGE. 8. MOLY D/O. VARKEY, CHEMBAKASSERIYIL HOUSE, POTHANIKADU KARA, POTHANIKAD VILLAGE. 9. PAUL S/O. VARKEY, CHEMBAKASSERIYIL HOUSE, POTHANIKADU KARA, POTHANIKAD VILLAGE. ADV. SRI.S.SHYAM FOR R2 TO 9 SRI.BOBBYMATHEW KOOTHATTUKULAM FOR R2 TO 9 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 03/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: FAO No. 216/08 ORDER ON IA No.3489/08 IN FAO No.216/08 DISMISSED 3.10.08 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ PA TO JUDGE. M.N.KRISHNAN, J. -------------------------- F.A.O. No. 216 OF 2008 --------------------- Dated this the 3rd day of October, 2008 JUDGMENT This appeal is preferred against the order of the Addl. District Judge, Ernakulam, in I.A Nos. 1321 & 1322/2008 in A.S No.68/95. The petitioners before that court are the legal heirs of the deceased 1st appellant. It was an appeal preferred against the judgment of the trial court. The appellants did not prosecute the appeal and therefore it was dismissed. An application was filed to restore the appeal along with a petition to condone the delay of 148 days. The court found that there were no sufficient grounds to condone the delay and therefore dismissed the delay condonation application as well as the application for restoration of the appeal. It is against that decision, the said appellants have come up with this appeal. 2. Heard the counsel for both sides. Admittedly the present appellants are only the legal representatives of the deceased 1st appellant. It is their contention that it was the deceased 1st appellant who was prosecuting the matter. It is further averred that as she was laid up with a stroke and had continued the same till her death, the matter was not properly enquired into and prosecuted. It is submitted that when some steps were taken to implement the decree, then only the appellants came FAO No.216/08 2 to know about it. Thereafter they have moved an application for restoration of the appeal. 3. The broad principles of natural justice demands that as far as possible the matter should be heard on merits. Equally it is a settled principle that unless there is gross negligence or grave misconduct an opportunity shall be given. It is true that there were other appellants also before the appellate court. It is specifically contended that it was on account of the fact that it was the 1st appellant who was prosecuting the matter, others did not take proper interest. One cannot attribute gross negligence or grave misconduct on the part of the appellants. So I feel an opportunity can be given to the appellants. Therefore, the order under challenge is set aside. The petition to condone the delay is allowed and the appeal is restored to file. The court below is directed to consider the appeal on merits and dispose of the same within a period of three months from the date of first appearance of the parties. Parties are directed to appear before the court below on 10.11.08. M.N.KRISHNAN, JUDGE vps FAO No.216/08 3