IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 20TH FEBRUARY 2008 / 1ST PHALGUNA 1929 WP(C).No. 16026 of 2007(G) -------------------------- AGAINST THE ORDER DATED 27/10/2006 IN IA.2396/2005 IN AS.223/1992 of I ADDL.DISTRICT COURT, KOZHIKODE .................... PETITIONER: ------------ PUTHANPURAYIL BALAKURUP, VAIKKILASSERI AMSOM DESOM, VADAKARA. BY ADV. SRI.R.K.MURALEEDHARAN RESPONDENTS: ------------- 1. THAMARAKKULATH AHAMMED HAJI, ERAMALA AMSOM, ORKKATTERI DESOM, VADAKARA TALUK. 2. THAMARAKKULATH KADEESHA, KONOTH PARAMBATH, ERAMALA AMSOM, -DO-. 3. THAMARAKKULATH IBRAHIM, ERAMALA AMSOM, -DO-. 4. THAMARAKKULATH KUNHAMI, DO. 5. THAMARAKKULATH KADEESHA, DO. 6. THAMARAKKULATH AYISHA, ERAMALA AMSOM, ORKKATTERI DESOM. 7. SEMEERA, DO. 8. PAREMMAL ABOOBACKER HAJI, CHORODE AMSOM DESOM, VADAKARA TALUK. (DELETED) (Respondent No.8 is deleted as per order dt.28.6.2007 in W.P.(C)) W.P.(C) NO.16026/2007 9. OONHAMPARAMBATH RAGHAVAN, ERAMALA AMSOM, ORKKATTERI DESOM, VADAKARA. 10. PAREMMAL UMMAYYA HAJJUMMA, CHORODE AMSOM, VADAKARA. BY ADV. SRI.V.V.SURENDRAN SRI.P.A.HARISH SRI.T.SETHUMADHAVAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.16026/2007 APPENDIX PETITIONER'S EXTS: EXT.P1: COPY OF THE JUDGMENT IN S.A.NO.123/97. EXT.P2: COPY OF THE I.A.NO.2396/2005 BEFORE THE DISTRICT COURT, KOZHIKODE. EXT.P3: COPY OF THE COURT AFFIDAVIT FILED BY THE PETITIONER. EXT.P4: COPY OF THE ORDER IN I.A.223/92 //TRUE COPY// PA TO JUDGE. M.N.KRISHNAN, J. --------------------------- W.P.(C) No.16026 OF 2007 -------------------------- Dated this the 20th day of February, 2008 J U D G M E N T ~~~~~~~~~~~ This writ petition is preferred against the order of the District Judge, Kozhikode in I.A.No.2396/2005 in A.S.No.223/92. The original suit in O.S.No.109/90 was a suit for recovery of possession and it was decreed. Against that the 1st defendant preferred A.S.No.223/92 and the 4th defendant preferred A.S.No.172/92 before the District Judge, Kozhikode. Both the appeals were heard and allowed. Against the said decision the defeated plaintiff moved this Court as second appeal, S.A.No.123/97. This court by this judgment dated 23.11.2004 set aside the judgment and decree of the appellate court and remanded the case back to the appellate court for hearing and disposal. This court also directed the court below to consider the contention of the appellant that A.S.No.223/92 had abated due to non-impleadment of the legal heirs of the 1st defendant. Unfortunately, after the remand, the appellants in A.S.No.223/92 remained absent and therefore the appeal was dismissed for default. The connected appeal A.S.No.172/92 is W.P.(C) No.16026/2007 2 still pending before the District court for disposal. 2. Learned counsel for the writ petitioner contends before me that the grounds averred for restoration of the appeal is that they were not aware of the proceedings before the appellate court and therefore the delay of 180 days is to be condoned and the appeal is to be restored. The court below found in favour of the said petitioners and allowed it on a cost of Rs.1000/- to the plaintiff in the case. 3. Learned counsel for the writ petitioner would submit that the grounds averred are incorrect basically for the reason that these persons were impleaded as the legal representatives of the said person in the second appeal before the Court and it was only after hearing them, the court has remanded the matter back to the appellate court and therefore, the plea of ignorance regarding the pendency of the appeal cannot be termed as correct. There is some force in the said contention. But it has to be born in mind against one suit two appeals are preferred by two defendants and one of the appeal is pending consideration before the appellate court as per a direction of the court even now. It is true that there is delay in filing the application for restoration. But that does not mean that they were totally W.P.(C) No.16026/2007 3 negligent in prosecuting the matter. The decision is crucial as far as they are concerned. At any rate, the other appeal is to be decided and the restoration of this appeal would not cause the plaintiff any inconvenience. This will not cause unnecessary protraction also. 4. It is a settled principle that the broad principles of natural justice reminds the judicial institutions for a fair hearing, as for as possible, before the matter is disposed of, taking into consideration that principle also, I do not want to interfere with the order and the discretionary jurisdiction exercised by the learned appellate judge in restoring the appeal which was dismissed for default. 5. Accordingly, the writ petition is disposed of. Needless to say that the very old appeal of 1992, the court below shall try its level best to dispose it of before the court closes for summer holidays in 2008. (M.N.KRISHNAN, JUDGE) ps