IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 29TH NOVEMBER 2011 / 8TH AGRAHAYANA 1933 FAO.No. 65 of 2010() -------------------- AGAINST THE ORDER IN IA 4298/2008 IN AS.303/2004 of II ADDL. DISTRICT COURT, TRIVANDRUM .................... APPELLANT/APPELLANT/DEFENDANT: ------------------------------------------------------- T.VIJAYAKUMARAN, VIJAYASADANAM, VALIYARATHALA, OORUTTAMBALAM P.O THIRUVANANTHAPURAM. BY ADV. SRI.MOHAN JACOB GEORGE SMT.P.V.PARVATHI SMT.REENA THOMAS SRI.L.RAM MOHAN RESPONDENT(S): RESPONDENT/PLAINTIFF: ----------------------------------------------------------- K.THOMAS, PROPRIETOR, RENJINI SALES CORPORATION, PEYANIVILA VEEDU, KAREKKAMANDAPAM, NEMOM P.O., THIRUVANANTHAPURAM. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 29/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 65 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of November, 2011. JUDGMENT This appeal is directed against the order dated 10.2.2009 in I.A. 4298 of 2008 in A.S. 303 of 2004, whereby the court below dismissed an application for restoration of appeal and for hearing it on merits. 2. The appellant before this court was the defendant in O.S. 2035 of 1999 before the Principal Munsiff's Court, Thiruvananthapuram. The suit was decreed. The appellant preferred appeal as A.S.303 of 2004 before the District Court, Thiruvananthapuram. According to the appellant, on 3.11.2008 when the appeal came up for hearing, there was no appearance or representation on behalf of the respondent. But the order of the court was that the appellant was absent and posted the case to 4.11.2008. On the next day, as the Senior Counsel was engaged in another court, the matter F.A.O.65/2010. 2 was represented by a junior counsel and it was mentioned that a mistake had been committed on the previous day. It was actually the respondent who was absent and not the appellant. Without heeding to the request of the junior counsel, the appeal was dismissed on 4.11.2008. 3. The appellant thereafter filed I.A.4298 of 2008 for restoring the appeal back to file and have it heard on merits. That petition was allowed by order dated 20.1.2009 mulcting the petitioner with costs of Rs.5000/-. Aggrieved by the huge cost awarded, appellant before this court filed a review petition. That was dismissed and thereafter on 10.2.2009 I.A.4298 was also dismissed. 4. Learned counsel appearing for the appellant contended that the appellant had been deprived of an opportunity to have the appeal heard on merits and there is no reason for awarding such huge costs for restoring the appeal. Learned counsel pointed out that in fact on 3.11.2008 the appellant was present and it was the respondent who was absent. Erroneously the court has F.A.O.65/2010. 3 noted that the appellant was absent and the case was posted to 4.11.2008. The absence on 4.11.2008 was not deliberate but due to reasons beyond the control of the counsel. The court ought to take a lenient view and should have taken the appeal back to file and hear it on merits. 5. There seems to be considerable force in the above submission. The junior counsel, who appeared on behalf of the senior counsel prayed that the matter may be adjourned since the senior counsel was engaged. It is also to be noticed that on 3.11.2009 the appellant was present and it was the respondent who was absent. Instead of noting the said fact, the court erroneously noted that the appellant was absent. Whatever that be, a valuable right of the appellant had been deprived of in dismissing I.A. 4298 of 2008 on the ground of non-payment of costs of Rs.5000/-. There is no justification for awarding such huge costs for, there was no wilful laches or negligence on the part of the appellant. It is not seen from the order of the court below that the appellant had played any delaying or dilatory tactics F.A.O.65/2010. 4 in order to postpone the hearing of the appeal. There was no justification for the court below to dismiss I.A.4298 of 2008 without affording an opportunity to have the appeal heard on merits. In the result, the order in I.A.4298 of 2008 is set aside and the I.A. stands allowed and the appeal is restored to file. The lower appellate court is directed to hear the appeal on merits and dispose of the same in accordance with law. P. BHAVADASAN, JUDGE sb.