IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 27TH MAY 2009 / 6TH JYAISHTA 1931 FAO.No. 152 of 2005() --------------------- AGAINST THE ORDER DATED 28/02/2005 IN IA 1535/004 IN AS.20/2002 of SUB COURT, PALA .................... APPELLANTS/PETITIONERS/APPELLANTS: ----------------------------------------------------------- 1. RUGMINIAMMA, W/O. KUTTAPPAN, KALLAPPALLIL HOUSE, MELAMPARA KARA, THALAPPALAM VILLAGE FROM MANGATTU HOUSE, KAYYOOR KARA, BHARANANGANAM VILLAGE. 2. KUTTAPPAN, S/O. GOPALAN, KALLAPPALLIL HOUSE, MELAMPARA KARA, THALAPPALAM VILLAGE FROM MANGATTU HOUSE, KAYYOOR KARA, BHARANANGANAM VILLAGE. BY ADV. SRI.T.I.ABDUL SALAM RESPONDENT(S)/RESPONDENTS/RESPONDENTS: -------------------------------------------------------------------- 1. JOSEPH, S/O. JOSEPH, KOTTARATHIL HOUSE, MELAMPARA KARA, THALAPPALAM VILLAGE. 2. ROSAMMA, W/O. JOSEPH, KOTTARATHIL HOUSE, MELAMPARA KARA, THALAPPALAM VILLAGE. ADV. SRI.TOM JOSE FOR R.1,2 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 27/05/2009, ALONG WITH FAO NO.174 OF 2005 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. Nos. 152 & 174 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of May, 2009. JUDGMENT Raman, J, Both the appeals are connected. Appellants are the plaintiffs in O.S.15 of 1998 and the defendants in O.S.14 of 1998. Both the suits were jointly tried. Suit filed by the appellants as plaintiffs was dismissed and the suit filed by the respondents herein as plaintiffs was allowed. Against which two appeals were preferred. Both the appeals were posted before the appellate court on the same day. On behalf of the counsel appearing for the appellants, an adjournment motion was made. The court below refused adjournment and eventually appeals were dismissed for default. Subsequently restoration applications were filed as contemplated under Order 41 Rule 19 of the Code of Civil Procedure. But the court below found that the appeals had been posted on a number of occasions earlier and on the day on which it was posted, adjournment motion was made without stating the reason, so the court did not find any grounds for allowing the FAO.152 & 174/2005. 2 applications for restoration. 2. We have heard the parties. 3. It is true that the adjournment motion merely stated that the counsel appearing in the cases was not present. But at the same time it admits of no doubt that a representation was made in the case by another counsel seeking for an adjournment. The reason for the absence on the date on which the appeals were posted earlier was not stated. However, learned counsel appearing for the appellants submits that he was a practicing lawyer in this court and he could not be present on the date on which the appeals were posted. 4. The facts and circumstances of the case would show that though we cannot find fault with the court below for dismissing the appeals, we find that interests of justice demands that the court ought to have restored the appeals on terms, as there is no willful default of non- appearance. In the result, we set aside the orders passed by the court below and restore the appeals, A.S.20 and 21 of 2002, to the file of Sub Court, Pala on condition that an amount of Rs.5000/- shall be paid FAO.152 & 174/2005. 3 to the respondents as costs through counsel within six weeks from today, failing which the appeals will stand dismissed. In case the order is complied with as aforesaid, the parties will appear before Sub Court, Pala on 10.7.2009. P.R. Raman, Judge P. Bhavadasan, Judge sb. An amount of Rs.5000/- has been paid by the counsel for the Appellant as costs to the counsel for the Respondents within the stipulated time as ordered in the judgment dated 27/05/2009 in F.A.O. No.152 & 174/2005 vide memo cf 3482/2009 dated 04/06/2009. Sd/- Registrar (Judicial)