IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 15TH JUNE 2009 / 25TH JYAISHTA 1931 FAO.No. 260 of 2008() --------------------- (AGAINST THE ORDER DT.11.4.2008 IN IA NO.277/04 IN OS.332/1988 of I ADDL.SUB COURT, THRISSUR) .................... APPELLANT/PETITIONER -------------------- BINNY JOSE,S/O.IMMATTI JOSEPH, KIZHAKKEKOTTA,THRISSUR VILLAGE & TALUK. BY ADV. SRI.DINESH R.SHENOY SRI.V.V.UNNIKRISHNAN SRI.G.HARIKRISHNAN (TRIPUNITHURA) RESPONDENT(S): --------------- 1. SHEEBA,W/O.RAPPAI,KALLARACKAL VEETTIL, KOTTAPPURAM,THRISSUR TALUK. 2. RAPPAI,KALLARACKAL VEETTIL,KOTTAPPURAM, THRISSUR TALUK. 3. LEENA JACOB,W/O.JACOB,VALATHELIL HOUSE, KOTTAYAM. 4. BABU JOSE,S/O.IMMATTI JOSEPH, MIZHAKKEKOTTA,THRISSUR VILLAGE & TALUK. 5. FINNY JOSE,S/O.IMMATTI JOSEPH, KIZHAKKEKOTTA,THRISSUR VILLAGE & TALUK. ADV. SRI.JIJO PAUL FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 15/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. -------------------------------------------------------- FAO NO.260 OF 2008 -------------------------------------------------------- Dated 15th June 2009 Judgment BHAVADASAN, J. Aggrieved by the order in IA No.277/04 in OS No.332/88 before the Sub Court, Thrissur, the petitioner/4th plaintiff in the suit before the court below, has come up in appeal. 2. The suit was one for setting aside a document. The plea was that the deed was executed with the intention of providing security and not intended as a sale deed. There were several litigations between the parties. It is seen that in one of the suits, a joint trial petition was moved and an order was passed to that effect. The petitioner would say that somehow, the counsel for the appellant could not be present in court on the date of posting of the case namely, OS No.332/88 and there was no representation from their side on 12.01.2004. Immediately on coming to know of the dismissal of the suit, IA No.277/04 was filed by the appellant for restoration of the suit. FAO 260/08 2 That IA also happened to be dismissed for default. Therefore, the appellant filed IA No.5436/06 for restoration of IA No.277/04. That underwent a checkered career and later, this court by the judgment dated 20.07.2007 in WP(C)No.21763/07, set aside the order in IA No.5436/06. Consequently, the learned Sub Judge was directed to dispose of IA No.277/04 within a period of six weeks. On 04.04.2008, the 4th respondent in IA 277/04 filed two applications seeking to contest the petition. They were filed after the petitioner had filed his affidavit in proof. Therefore, that evidence had to be re-opened. On 09.04.2008, it was recorded that the contesting respondent had no witness to examine and the case was posted to 10.04.2008. On 10.04.2008, the two applications mentioned earlier were allowed and the case was posted to 11.04.2008. The appellant could not appear in court on 10.04.2008. It was represented at the time when the case was called on 10.04.2008 that it will not be possible to inform the petitioner within a day and some breathing time may be given to send the communication to him about the posting of the case and for his cross-examination. Since the petitioner was unable to FAO 260/08 3 attend the posting on 11.04.2008, the court below dismissed the petition. It is the said order that is assailed in this case. 3. It would appear that there are several litigations between the parties with regard to various immovable properties. It is seen from the records that due to the proceedings in this suit, the trial of the other suit is also held up. The learned counsel for the appellant pointed out that only because it was not possible to inform the appellant on 10.04.2008 that the case was posted to 11.04.2008, that he could not be present on the latter date. It was also contended that there is nothing to indicate that on previous occasions, the appellant had adopted directory tactics and his intention was only to drag on the suit. The learned counsel for the appellant pointed out that the order in IA No.277/04 is unsustainable in law. One may note that the suits are of the year 1988, 1994 etc. They have been pending for a very long time. The suit, out of which the present proceedings originated, was filed in 1988. Of course, there have been several litigations between the parties. Whatever that be, there is nothing to show that either the counsel appearing for the FAO 260/08 4 appellant or the appellant could make arrangements to be present in the court on 11.04.2008. Even if the appellant had knowledge of the posting of the case in time, the learned counsel for the appellant pointed out that it may not be possible to get the appellant down from his place within a day and so, he prayed for a short time. That was declined and the impugned order was passed. 4. It is to be noticed that the appellant has been taking steps diligently for the prosecution of his case. There is nothing to show, as already stated, that he is guilty of contumacious conduct. His claim that it is only because of the posting of the case on the next day that he could not appear in court, is false. 5. It is felt that the appellant should be given an opportunity to agitate IA No.277/04. In the result, this appeal is allowed. The impugned order is set aside and the court below is directed to take back IA No.277/04 in OS No.332/88 on file and dispose it of FAO 260/08 5 in accordance with law and in the light of what has been stated herein above. No order as to costs. SD/-P.R.RAMAN, JUDGE SD/-P.BHAVADASAN, JUDGE True copy PA TO JUDGE sta FAO 260/08 6