IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 18TH MARCH 2009 / 27TH PHALGUNA 1930 FAO.No. 48 of 2007() -------------------- AGAINST THE ORDER DATED 03/12/2005 IN IA. 1736 /2005 IN AS.85/2002 of DISTRICT COURT,TRIVANDRUM .................... : APPELLANT/PETITIONER: ----------------------------------------- RAJAMMA, W/O. KAMALAPPAN, TC.14/578, NEAR POLICE CAMP, NANDAVANAM, THIRUVANANTHAPURAM. BY ADV. SRI.MOHAN JACOB GEORGE SMT.P.V.PARVATHI SMT.REENA THOMAS SRI.TITUS THOMAS RESPONDENT(S): COUNTER PETITIONER: ---------------------------------- 1. RANI, TC.11/179, NANDANCODE, THIRUVANANTHAPURAM. 2. VEENA OF -DO- --DO-. BY ADV. SRI.M.BALAGOVINDAN ADV. SRI.M.R.SASITH THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 18/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== F.A.O NO. 48 OF 2007 =========================== Dated this the 18th day of March,2009 JUDGMENT Appellant in A.S.85/2002 on the file of District Court, Thiruvananthapuram is the appellant. Respondents are the respondents. Appeal was filed challenging the decree for injunction granted by the Munsiff, Thiruvananthapuram in O.S.1368/1993 in favour of the respondents. A.S.85 of 2002 was posted for arguments to 17.6.2005. The counsel appearing for appellant was absent when the appeal was taken up. There was no representation also. The appeal was therefore dismissed for default. Appellant filed I.A.1736/2005 an application under Rule 19 of Order XLI of Code of Civil Procedure to readmit the appeal contending that though the junior counsel to the senior counsel appearing for the F.A.O 48/2007 2 appellant was present at the time when the appeal was called, he did not hear the case number being called as he was under the impression that instead of A.S.85/2002, A.S.85/2001 was called. It was alleged that the junior counsel was directed to seek an adjournment as senior counsel was suffering from illness and the failure to represent the case was not deliberate or due to any negligence or laches therefore the appeal is to be readmitted. 2. Though notice was served on the respondents, they did not file any objection. Learned District Judge as per order dated 3.12.2005 dismissed the application. It is challenged in this appeal. First respondent appeared through a counsel. 3. Learned counsel appearing for the appellant was heard. 4. The argument of the learned counsel is that though the appeal was dismissed for default on 17.6.2005, Ext.A1 petition to readmit the F.A.O 48/2007 3 appeal along with the affidavit of the counsel and the appellant was filed on 22.6.2005 itself and when the facts stated therein was not disputed by respondents, learned District Judge should have allowed the application and disposed the appeal on merits and in the interest of justice, an opportunity is to be granted. 5. Though the appeal was of 2002 and it was dismissed for default, within the period of limitation a petition under Rule 19 of Order XL1 of Code of Civil Procedure was filed. In such a case unless there was sufficient cause not to allow the application, and if the dismissal was not due to culpable negligence, learned District Judge should have allowed the application granting opportunity to have a decision in the appeal on merits. For the failure of the counsel to appear on 17.6.2005, the appellant cannot be penalised or denied justice. When the reasons shown by the appellant supported by the affidavit of the counsel that he was not well and F.A.O 48/2007 4 the junior was directed to seek an adjournment and the junior could not make a representation due to his fault, learned District Judge should not have denied an opportunity to the appellant to have a decision on merits. Even if there is any negligence on the part of the counsel, that is not a reason to deny natural justice to the appellant to get a decision on merits in the appeal. In such circumstance, in the interest of justice, an opportunity is to be granted to the appellant. The appeal is allowed. The order in I.A.1736/2005 is set aside. Petition stands allowed. A.S.85/2002 is restored to the file of District Court, Thiruvananthapuram. The District Judge is directed to dispose the appeal on merit. It is made clear that the appellant shall not seek further adjournment and shall get ready for arguments on the date of posting. M.SASIDHARAN NAMBIAR JUDGE tpl/- F.A.O 48/2007 5 M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006