IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 26TH JULY 2010 / 4TH SRAVANA 1932 MJC.No. 304 of 2010() --------------------- AGAINST THE JUDGEMENT/ORDER IN SA.490/2000 .................... PETITIONERS/APPELLANTS: -------------------- 1. UNION OF INDIA REP BY DEFENCE SERCRETARY GOVERNMENT O FINDIA NEW DELHI - 11 2. OFFICER IN CHARGE RECORDS DSC MILL ROAD, KANNUR 3. OFFICER IN CHARGE RECORDS THE MADRAS REGIMENT POST BAG NO.1 WELLINGTON, NIL GRIS 643 231 4. ACCOUNTS OFFICER C D A (PENSION) ALLAHABAD BY ADV. SRI.K.M.JAMALUDHEEN,SENIOR PANEL COUNSE RESPONDENTS/RESPONDENTS: --------------- 1. E UNNOOLI, W/o. LATE VELUKUTTY AGED 70 YEARS, EDAKKANDIYIL HOUSE P O MAVOOR, KOZHIKODE DISTRICT (DIED) 2. THE DISTRICT COLLECTOR KOZHIKODE 3. E BABY, AGED 45 YEARS , D/o. LATE UNNOOLI RESIDING AT KOZHAKKEL MEETHAL HOUSE KODAL NADAKKAVU P O PANTHEERANKAVU PANTHEERANKAVU AMSON IN KOZHIKODE TALUK 4. E MEERA, D/o. LATE UNNOOLI EDAKKANDIYIL HOUSE P O MAVOOR, KOZHIKODE DISTRICT 5. LEELA, D/o. LATE UNNOOLI KURUTTIOT HOUSE VAZHAKKAD , VAZHAKKAD AMSOM IN MALAPPURAM DISTRICT 6. E BHAVANI, D/o. LATE UNNOOLI EDAKKANDIYIL HOUSE P O MAVOOR, KALPALLI AMSOM IN KOZHIKODE DISTRICT 7. E SUBRAMANIAN, S/O. LATE UNNOOLI EDAKKANDIYIL HOUSE P O MAVOOR,KALPALLI AMSOM IN KOZHIKODE DISTRICT 8. E AJITH, D/o. LATE UNNOOLI MAYERIMMAL HOUSE, KANNIPARAMBA POST MAVOOR AMSOM IN KOZHIKODE DISTRICT THIS MISCELLANEOUS JURISDICTION CASE HAVING BEEN FINALLY HEARD ON 26/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- C.M.Appl.No.540 of 2010 in M.J.C.No.304 of 2010 and M.J.C.No.304 of 2010 -------------------------------------- Dated this the 26th day of July, 2010. ORDER These applications are for restoration of the appeal dismissed for default on 23-12-2009 and to condone the delay of 178 days in filing the applications. It is stated that term of counsel appearing for petitioners had expired and the case file was not returned to the Assistant Solicitor General of India for reallotting the file and that fact of dismissal for default came to the notice of counsel concerned only on 29-06-2010. Learned counsel submitted that there was no willful latches on the part of petitioners. Application is opposed by the respondent. It is pointed out that there is sufficient reason for condonation of delay or restoring the appeal dismissed for default. 2. It is seen from the judgment of this court that when the appeal came up for hearing on 22-12-2009 counsel for respondent was present and requested for an early hearing of the matter considering the difficulties being experienced by respondents 3 to 8. Counsel for petitioners/appellants was not present and hence the 2 appeal was posted on 23-12-2009. That day also the same thing happened. It is thereon that appeal was dismissed for default. Petitioner may have its own reasons to claim that it was not aware of the dismissal of the appeal. But fact remained that on account of continuous absence of counsel for petitioner the appeal was dismissed. Having regard to the facts and circumstances of the case I am inclined to allow the application but on terms of cost. It is directed that these applications will be allowed on condition that petitioners paid to respondent Nos.3 to 8 through counsel Rs.5,000/- (Rupees Five Thousand Only) by way of cost within two weeks from this day. Post after two weeks. THOMAS P.JOSEPH, Judge. Sbna/-0