IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 19TH DECEMBER 2008 / 28TH AGRAHAYANA 1930 FAO.No. 256 of 2008() -------------------------- AGAINST THE ORDER DATED IN IA 917/2008 IN OS.225/2007 of SUB COURT, MAVELIKKARA .................... APPELLANT/PLAINTIFF --------------------------------- P.PHILIPOSE, AGED 50 YEARS, S/O.PAPPACHAN, VALIYAPARAMBIL, KARIMULACKAL MURI, CHUNNAKKARA VILLAGE, MAVELIKKARA TALUK. BY ADV. SMT.A.SALINI LAL RESPONDENT(S): DEFENDANT ------------------------------------- MATHEW JOHN, AGED 40 YEARS, S/O.JOHN, JERRY VILLA, VETTICODU MURI, KATTANAM VILLAGE, MAVELIKKARA TALUK. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 19/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = F.A.O. NO. 256 OF 2008 = = = = = = = = = = = = = = = Dated this the 19th day of December, 2008. J U D G M E N T This appeal is preferred against the order of the Subordinate Judge, Mavelikkara in I.A.Nos.917 and 918/08 in O.S.225/07. The appellant is the plaintiff. He has filed a suit for realisation of an amount due form the defendant. It was dismissed for default on 10.4.08. An application for restoration was filed with a 56 days delay. The Court below simply recorded that he has gone through the affidavit and was satisfied that there is no reason to justify the delay of 56 days. I feel the approach of the learned judge is absolutely incorrect. The Court below should have at least issued notice to the other side, heard the other side and disposed of the application instead of summarily rejecting it by just reading the affidavit. Even no opportunity was given to let in evidence to substantiate the grounds of delay. Therefore I set aside the orders passed in I.A.Nos.917 and 918/08 and direct the Subordinate Judge, Mavelikkara to restore those F.A.O. 256 OF 2008 -:2:- petitions to file and issue notice to the respondent therein namely the defendant and if he has already entered appearance through counsel by giving notice the counsel and then give an opportunity to the plaintiff to adduce evidence to satisfy the Court regarding the reasons for the delay and then dispose of the applications in accordance with law. It must be always borne in mind that the broad principles of natural justice always demand that matters should be heard and disposed of on merits rather than dismissing it for technical reasons. The appellant is directed to appear before the trial court on 23.1.2009. The FAO is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-