IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 13TH SEPTEMBER 2010 / 22ND BHADRA 1932 WP(C).No. 7992 of 2009(O) -------------------------------- AS.215/2007 of ADDL.DISTRICT COURT-I,MAVELIKKARA .................... PETITIONER(S): ------------------- SASIDHARAN, PROPRIETOR M/S. SILPA SALES TRADING CORPORATION MATTAM NORTH, THATTRAMBALAM, MAVELIKKARA, ALAPPUZHA DISTRICT. BY ADVS. SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA RESPONDENT(S): -------------------- 1. M/S FAST & SAFE TRANSPORT PVT LTD, NEAR PRIVATE BUS STAND, MAVELIKKARA, REPRESENTED BY ITS MANAGER. 2. M/S FAST & SAFE TRANSPORT PVT LTD, THAMARAKKULAM-REPRESENTED BY ITS MANAGER. 3. M/S FAST & SAFE TRANSPORT PVT LTD, P.B.NO.4501, VEEKAY TOWER, T.B.ROAD, ERMAKULAM 18 REPRESENTED BY ITS MANAGER. R3 BY ADVS. SRI.P.V.BABY SRI.JOSHY THANNICKAMATTAM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SVS/ WP(C).No. 7992 of 2009(O) APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE JUDGMENT AND DECREE DATED 13/07/2007 IN O.S.NO. 16/2005 ON THE FILE OF THE COURT OF MUNSIFF, MAVELIKKARA. P2: COPY OF THE MEMORANDUM OF APPEAL A.S.NO.215/2007 ON THE FILE OF THE ADDITIONAL DISTRICT COURT - 1, MAVELIKKARA. P3: COPY OF THE I.A. NO.1118/2007 IN A.S. NO.215/2007 FILED BEFORE THE ADDITIONAL DISTRICT COURT - 1, MAVELIKKARA. P4: COPY OF THE AFFIDAVIT FILED BY THE PETITIONER IN A.S.NO.215/2007 ON THE FILE OF THE ADDITIONAL DISTRICT COURT - 1, MAVELIKKARA. P5: COPY OF THE ORDER DATED 17/03/2008 IN I.A.NO.1118/2007 IN A.S.NO.215 ON THE FILE OF THE ADDITIONAL DISTRICT COURT - 1, MAVELIKKARA. P6: COPY OF THE ORDER DATED 17/03/2007 IN A.S.NO.215 ON THE FILE OF THE COURT OF THE ADDITIONAL DISTRICT COURT - 1, MAVELIKKARA. P7: COPY OF THE AFFIDAVIT AND PETITION I.A.NO.760/2008 IN A.S.NO.215/2007 ON THE FILE OF THE ADDITIONAL DISTRICT COURT - 1, MAVELIKKARA. P8: COPY OF THE ORDER DATED 10/07/2008 IN I.A.NO.760/2008 IN A.S.NO.215/2007 ON THE FILE OF THE COURT OF THE DISTRICT JUDGE - 1, MAVELIKKARA. P9: COPY OF THE AFFIDAVIT AND PETITION FILED IN SUPPORT OF THE APPLICATION FOR ADJOURNMENT IN A.S.NO.215/2007 ON THE FILE OF THE COURT OF THE ADDITIONAL DISTRICT JUDGE, MAVELIKKARA. P10: COPY OF THE AFFIDAVIT AND PETITION IN SUPPORT OF I.A.NO.1512 OD 2008 IN A.S.NO.215OF 2007 ON THE FILE OF THE COURT OF THE ADDITIONAL DISTRICT JUDGE, MAVELIKKARA. P11: COPY OF THE ORDER DATED 24/09/2008 IN I.A.NO.1512/2008 IN A.S.NO.215/2007 ON THE FILE OF THE COURT OF THE ADDITIONAL DISTRICT JUDGE, MAVELIKKARA. /TRUE COPY/ P.A. TO JUDGE SVS/ HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.7992 Of 2009 ---------------------- Dated this the 13th day of September, 2010. J U D G M E N T Petitioner is the plaintiff in O.S.No.16 of 2005 on the file of the Munsiff Court, Mavelikkara. Suit filed for damages was dismissed by judgment dated 13.7.2007. True copy of the judgment and decree in O.S.No.16 of 2005 is marked as Ext.P1. Petitioner filed appeal before the appellate court as party in person. Petitioner filed A.S.No.215 of 2007 with a petition to condone delay of 47 days in filing the appeal. By Ext.P5 order dated 17.3.2008 in I.A.No.1118 of 2007 the Additional District Court I, Mavelikkara dismissed the petition for condonation of delay for default and consequently the appeal was also dismissed by Ext.P6 order. Ext.P7 is the application for restoration of the application for condonation of delay and the appeal. It is stated in the petition for restoration that the appeal and the petition for condonation were happened to be dismissed on 17.3.2008 since the petitioner was absent on 17.3.2008, the date on which the marriage of the daughter of the petitioner was scheduled. He W.P.(C).No.7992 Of 2009 ::2:: could not appear on that day, that in his absence the petition for condonation of delay was dismissed for non-prosecution and consequently the appeal was also dismissed. I.A.No.763 of 2008 is the petition for restoration. It is pointed out that due to the petitioner's daughter's marriage, he could not appear on 17.3.2008 and requested the court to restore the appeal to file. When Ext.P7 petition was taken up for hearing, the petitioner was absent and therefore the petition also was happened to be dismissed for default. 2. It is submitted by the counsel for the petitioner even before the posting date namely, 10.7.2008 the petitioner moved for an adjournment stating that due to prior assignments he will not be in station on that day and therefore requested the court to adjourn the case to any other day other than 10.7.2008. It is submitted that without considering his request the Additional District Court I, Mavelikkara dismissed the I.A.No.760 of 2008 for default. Ext.P8 is the order passed in I.A.No.76 of 2008 dated 10.7.2008. The result is that the petition for restoration also stands dismissed for non-prosecution. The petitioner filed W.P.(C).No.7992 Of 2009 ::3:: Ext.P10 petition. It is stated that on 10.7.2008 he could not appear before the court since he had already reserved railway ticket for New Delhi in connection with a sales meeting which he could not avoid. The railway ticket number is also stated in the affidavit filed. Ext.P9 is the affidavit filed before the court. I.A.No.1512 of 2008 was also filed for restoration. The petition is marked as Ext.P10. 3. In this case the petitioner is appearing in person. He was not assisted by any lawyer. In fact the court below should have taken into account the said fact also before passing the impugned order. Even before the matter was taken up for hearing on 10.7.2008, a petition was filed for adjournment of the case to any other date stating his inability to appear before the court on that date. But the Additional District Court I, Mavelikkara passed Ext.P11 order dismissing the petition stating that there are defects in the petition and further stated that without filing a petition under Section 5 of the Limitation Act, subsequent petition for filing restoration of the appeal cannot be entertained. The petition was dismissed and the court directed W.P.(C).No.7992 Of 2009 ::4:: the petitioner to file a proper petition as per law. 4. Taking into consideration of the fact that the petitioner is a party in person and that he has filed a petition for adjournment of the case to any other day other than 10.7.2010, the court below should have restored the appeal to file and ought to have posted the appeal for re-hearing. Instead the court dismissed the application stating some reasons. It is a fact that the appellant is prosecuting the matter right from the day of filing of the appeal and I find that by filing this writ petition also he has been prosecuting the matter bonafide. It is a fact that the appeal was happened to be dismissed for default and till date there was no consideration of the appeal on merits. 5. Accepting the explanation offered by the petitioner, the application for restoration is allowed. considering the facts and circumstances of the case I accept the explanation offered in the affidavit filed in support of I.A.No.760 of 2008 for restoration of the appeal and delay condonation petition. Accordingly, I.A.No.760 of 2008 is allowed. What remains is Ext.P3 petition for condoning condoning delay in filing A.S.No.215 of 2007. the W.P.(C).No.7992 Of 2009 ::5:: delay in filing the appeal is 47 days. This Court accept the explanation stated for condonation of delay of 47 days in filing the appeal. Accordingly, I.A.No.1118 of 2007 is allowed. The appeal namely, A.S.No.215 of 2007 is restored to file. Accordingly, Exts.P5, P6, P8 and P11 orders are set aside. The Additional District Court I, Mavelikkara is directed to hear and dispose of the appeal on merits within a period of four months from the date of receipt of a copy of this judgment. Writ petition is allowed. HARUN-UL-RASHID, Judge. bkn/-