IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR THURSDAY, THE 3RD JANUARY 2008 / 13TH POUSHA 1929 FAO.No. 353 of 2007() --------------------- AGAINST THE ORDER DATED 31/10/2007 IN IA 1001/2007 IN AS.185/2004 of SUB COURT,NEYYATTINKARA .................... APPELLANTS/ APPELLANTS: --------------------------------- 1. DIVAKARAN MADHUSOODANAN ATHIMOODU VEEDU, ARUMANOOR DESOM, THIRUPURAM VILLAGE,POOVAR P.O. 2. SARASAMMA LATHA KUMARI ATHIMOODU VEEDU, ARUMANOOR DESOM, THIRUPURAM VILLAGE,POOVAR P.O. 3. SARASAMMA USHAKUMARI ATHIMOODU VEEDU, ARUMANOOR DESOM, THIRUPURAM VILLAGE,POOVAR P.O. BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR SRI.SAJU JOHN SRI.V.VARGHESE RESPONDENTS/RESPONDENTS: ------------------------------------- 1. SUDHAKARAN,S/O.MADHAVAN, PANCHAVADY, KADAVATTARAM, NEYYATTINKARA, THIRUVANANTHAPURAM DIST. 2. INDIRA BAI, D/O. BHAVANI, KOTTANVILA ROADRIKATHU KADAYARA PUTHEN VEEDU, ARUMANOOR DESOM THIRUPURAM VILLAGE, THIRUVANANTHAPURAM DIST. 3. YASODHARAN,S/O. DIVAKARAN ATHIMOODU, ARUMANOOR DESOM THIRUPURAM VILLAGE, THIRUVANANTHAPURAM DIST. FAO.No. 353 of 2007 :2: 4. DIVAKARAN SIVARAJAN, ATHIMOODU, ARUMANOOR DESOM THIRUPURAM VILLAGE, THIRUVANANTHAPURAM DIST. 5. DIVAKARAN JAYAPALAN, ATHIMOODU, ARUMANOOR DESOM THIRUPURAM VILLAGE, THIRUVANANTHAPURAM DIST. 6. DIVAKARAN SURESH ATHIMOODU, ARUMANOOR DESOM THIRUPURAM VILLAGE, THIRUVANANTHAPURAM DIST. 7. SARSAMMA AMBIKA, ATHIMOODU, ARUMANOOR DESOM THIRUPURAM VILLAGE, THIRUVANANTHAPURAM DIST. 8. RAMANI,W/O.SIVARAJAN, ATHIMOODU, ARUMANOOR DESOM THIRUPURAM VILLAGE, THIRUVANANTHAPURAM DIST. BY ADV. SRI.R.GOPAN THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 03/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.PADMANABHAN NAIR,J ==================== F.A.O. No.353 of 2007 ====================== Dated this the 3rd day of January, 2008 JUDGMENT Respondents 1 and 2 filed O.S.No.75/2003 before the Additional Munsiff Court, Neyyattinkara for declaration of injunction. The suit was decreed. Challenging the decree and judgment passed in the suit the appellants filed A.S.185/2004 before the Subordinate Court, Neyyattinkara. The case was posted for hearing to 29.6.2007. On that day appellants and counsel were absent. The learned Subordinate Judge dismissed the appeal for default. Thereafter, appellants filed a petition under Order 47 Rule 114 for restoration of appeal which was also dismissed for default. That petition was also dismissed. Challenging that order this F.A.O is filed. 2. The appeal was posted for hearing on 29.6.2007. On that day appellants and the counsel were absent. So the appeal was dismissed for default. The appellants filed a petition for rehearing of the appeal which was dismissed for default. That petition can be one filed under Order 41 Rule 19 of C.P.Code. F.A.O.No.353/2007 2 But in the petition it was noted that the same was filed under Order 47 and Rule 114. The mere fact that the legal provision quoted is wrong is not a ground to dismiss the petition. The Appellate Court took the view that the petition is filed by the counsel and not by the appellants. Of course that application was signed by the Advocate. The same is strictly in accordance with the provisions of law. Parties are represented by the lawyer. There is no practice of the party also signing the petition. The lower appellate court held that in the petition the appellants had only filed an affidavit supported by an affidavit of the lawyer. It also found that it was not supported by the petition. That findings are also wrong. In the last paragraph of the affidavit filed by the appellants it is specifically prayed that the appeal which was dismissed for default on 29.6.2007 may be restored to file. So actually the petition for restoration was supported by the affidavit filed by the parties to the appeal. In addition to that counsel who appeared in that case also filed an affidavit. The view taken by the learned Subordinate Judge that whenever the affidavit filed shall be accompanied by the petition is illegal. The appeal was dismissed for default and there is a petition under Order 41 Rule 19 for restoration of that appeal. F.A.O.No.353/2007 3 That petition is accompanied by the affidavit sworn to by the parties and another affidavit sworn to by the lawyer. It is to be noted that for hearing of the appeal the physical presence of the party is not necessary. That is why the lawyer also filed an affidavit. So the reasons stated by the lower appellate court for dismissing the petition for restoration is illegal and is liable to be interfered with. In the result the F.A.O is allowed. Order passed by the Court below dismissing I.A.No.1001/2007 in A.S.No.185/2004 is set aside. That I.A is allowed. The court below is directed to take A.S.No.185/2004 back to file and dispose of the same as expeditiously as possible, at any rate, within three months from the date on which the appeal is ripe for hearing. K.PADMANABHAN NAIR, JUDGE dvs