IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.M.SHAFFIQUE MONDAY, THE 19TH DECEMBER 2011 / 28TH AGRAHAYANA 1933 FAO.No. 343 of 2011() --------------------- I.A.No.1078/11 IN O.S.475/07 OF THE PRL.SUB COURT, ERNAKULAM APPELLANTS/PETITIONERS/PLAINTIFFS ----------------------------- 1. FRANCIS ALAPPAT @ P.A.FRANCIS, S/O.LATE P.T.ANTONY, AGED 56, PALATHINKAL HOUSE, BANK ROAD, KALOOR, KOCHI-17, ELAMKULAM VILLAGE, KANYANNUR TALUK. 2. ETTY ALAPPAT @ ETTY FRANCIS, W/O.FRANCIS ALAPPAT, AGED 49, PALATHINKAL HOUSE, BANK ROAD, KALOOR, KOCHI-17, ELAMKULAM VILLAGE, KANYANNUR TALUK. BY ADV. SRI.K.C.CHARLES RESPONDENT(S): RESPONDENTS/DEFENDANTS ------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, ERNAKULAM, COLLECTORATE, CIVIL LINES, KAKKANAD, ERNAKULAM. 2. DISTRICT COLLECTOR, ERNAKULAM, COLLECTORATE, CIVIL LINES, KAKKANAD, ERNAKULAM. 3. TAHSILDAR, KANAYANNUR TALUK, COCHIN-11. 4. CORPORATION OF COCHIN REPRESENTED BY ITS SECRETARY, OFFICE OF THE CORPORATION OF COCHIN, ERNAKULAM, COCHIN-11. ADV. SRI.E.D.GEORGE,SC,COCHIN CORPORATION FOR R4 GOVERNMENT PLEADER SRI.R.GITHESH. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 22/12/2011, THE COURT ON 19/12/2011 PASSED THE FOLLOWING: K.M.JOSEPH & A.M.SHAFFIQUE, JJ. * * * * * * * * * * * * * F.A.O.No.343 of 2011 ---------------------------------------- Dated this the 19th day of December 2011 J U D G M E N T K.M.JOSEPH,J This appeal is filed against the order rejecting the application filed by the applicants under Order 9 Rule 13 of the Code of Civil Procedure. The suit was filed by the appellants for declaration of title and for injunction and recovery of possession alternatively. The case was included in the list of trial on 13/01/2011. Noting the absence of the plaintiffs and their counsel, the suit was dismissed. 2. The case of the appellants is that the first appellant was laid up due to acute diabetics. A medical certificate was produced to that effect. The court below has reasoned that even though the first appellant has shown reason; the 2nd appellant has not shown any reason for her absence and that since the 2nd appellant was also a plaintiff to the suit, she could have appeared and adduced evidence and there was no case that the case was being conducted by the first plaintiff. Therefore there is no reason for the absence of the 2nd plaintiff before the court. F.A.O.No.343 of 2011 2 3. It is contended that the 2nd appellant is the wife of the 1st appellant who was looking after the first appellant. It is also contended by the learned counsel that no counter affidavit is filed by the respondents in the lower court. 3. We have heard the learned counsel for the petitioner, the learned Government pleader and the learned counsel for the Corporation. There is no delay in filing the application. In the circumstances of the case, the court below ought to have allowed the application. 4. Hence we allow the appeal and the application filed by the appellants and the suit will stand restored to file. 5. The parties will appear before the court below on 04/01/2012. The court below will dispose of the suit on or before the closure of courts for summer vacation 2012. Pending interlocutory application is closed. (K.M.JOSEPH, JUDGE) (A.M.SHAFFIQUE, JUDGE) jsr // True Copy// PA to Judge F.A.O.No.343 of 2011 3 F.A.O.No.343 of 2011 4 F.A.O.No.343 of 2011 5 K.M.JOSEPH & M.C.HARI RANI, JJ. .No. of 200 ORDER/JUDGMENT 30/082010