IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 24TH SEPTEMBER 2010 / 2ND ASWINA 1932 FAO.No. 295 of 2010() -------------------------- AGAINST THE ORDER DATED 27/07/2009 IN IA.9290/2008 IN OS.696/2007 of II ADDL.SUB COURT,ERNAKULAM .................... APPELLANT/PETITIONER/PLAINTIFF -------------------------------------------- E.A.JAYAKUMAR, AGED 42 YEARS, S/O.AYYAPPAN PILLAI, 50/114C, VISHNUVIHAR, PONEVAZHY ROAD, ELAMAKKARA.P.O., KOCHI-26, EDAPALLY NORTH, ERNAKULAM DISTRICT. BY ADVS. SRI.R.DIVAKARAN SRI.VINU CHAND RESPONDENT(S): RESPONDENT/DEFENDANT ----------------------------------------------------- VEEKSHANAM PRINTING AND PUBLISHING CO.LTD., REPRESENTED BY ITS MANAGING DIRECTOR, BENNY BEHANAN, VEEKSHANAM ROAD, KOCHI-28. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 24/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SVS/ THOTTATHIL.B.RADHAKRISHNAN & P.BHAVADASAN, JJ. ---------------------------------------------------------------------------------- CM Appl. No.1678/10 in FAO 295/10 and FAO No.295/10 ---------------------------------------------------------------------------------- Dated 24th September 2010 Judgment Thottathil.B.Radhakrishnan, J. An application to condone the delay of 69 days in filing the appeal against an order refusing to restore a suit which was dismissed for default, is filed on the ground that the appellant resides in Chennai and he could not file the appeal in time. We find that the suit is one for prohibitory injunction against trespassing into the immovable property belonging to the plaintiff. The plaintiff's application to issue a commission, was dismissed by the court below. A Writ Petition was filed before this Court. The learned counsel for the appellant, on query by court, says that the said writ petition was dismissed. Later, for the absence of the plaintiff, the suit was dismissed. The court below has taken the view that there is no material, including medical evidence, in support of the plea that the FAO 295/10 2 petitioner was hospitalised. However, we are of the view that no injustice would be caused to the plaintiff since the suit was one for permanent prohibitory injunction, based on a cause of action of alleged trespass into an immovable property and the suit was dismissed for default. We are not satisfied that sufficient cause is made out to condone the delay. The CM application is accordingly dismissed. Consequently, the appeal is also dismissed. THOTTATHIL.B.RADHAKRISHNAN, JUDGE P.BHAVADASAN, JUDGE sta FAO 295/10 3