IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 5TH SEPTEMBER 2011 / 14TH BHADRA 1933 FAO.No. 238 of 2011() --------------------- AS.129/2005 of PRINCIPAL SUB COURT,ATTINGAL .................... APPELLANT/ DEFENDANT:- ----------------------------- KESAVAN VISWAMBHARAN,THERIVILAPUTHAN VEEDU,PORUNTHAMON,PULIMATHU VILLAGE, THIRUVANANTHAPURAM DISTRICT. BY ADVS. SRI.M.R.RAJESH & SRI.K.M.ALEXANDER RESPONDENT(S): PLAINTIFF ------------------------ 1. NANDI GRANITES PVT.LTD,REPRESENTED BY ITS DIRECTOR R.SEKHAR,HOODI APARTMENTS GROUND FLOOR,NO.120,BANGALORE,KARNATAKA STATE, REPRESENTED BY POWER OF ATTORNEY HOLDER, RADHAKRISHNAN SANTHOSH,SANTHOSH BHAVAN, SOUTH KEERIKKADU,KAYAMKULAM,ALAPPUZHA. 2. SUGUNAN,CHITHIRAKAILASAM KUNNU, AROOR DESOM,KILIMANOOR VILALGE, REP.BY THE POWER OF ATTORNEY HOLDER JOY.A.G.PRATHEEKSHA,PORUNTHAMON,PULIMATH VILLAGE KILIMANOOR,THIRUVANANTHAPURAM DISTRICT. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 05/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: 2 FAO.No. 238 of 2011 APPENDIX APPELLANT' ANEXURES A. TRUE COPY OF THE I.A.729/2011 IN A.S.129/2005 OF THE SUB COURT ATTINGAL B TRUE COPY OF THE I.A.724/2011 IN A.S.129/2005 C. TRUE COPY OF THE JUDGMENT DATED 09.06.2011 IN O.P.(CIVIL)1936/2011. D. TRUE COPY OF THE ORDER DATED 30.03.2011 IN ANX.B E. TRUE COPY OF THE JUDGMENT DATED 30.06.2011 IN F.A.O.173/2011 OF THIS HON.COURT. F. TRUE COPY OF THE OBJECTION DATED 27.07.2011 FILED BY THE 2ND RESPONDENT TO ANX.B G. TRUE COPY OF THE ADDITIONAL COUNTER DATED NIL FILED BY THE 2ND RESPONDENT TO ANX.B. H. TRUE COPY OF THE AFFIDAVIT DATED 26.07.2011 BY THE COUNSEL FOR THE APPELLANT. I. CARBON COPY OF THE ORDER DATED 04.08.2011 IN I.A.724/2011 IN AS 129/2005 OF THE SUB COURT ATTINGAL RESPONDENT'S EXHIBITS NIL // TRUE COPY // PA TO JUDGE P.BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - F.A.O.No.238 of 2011 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of September, 2011 J U D G M E N T This appeal is directed against the order dated 04.08.2011 in IA.724/2011 in AS.129/2005 whereby the lower appellate court declined to restore the appeal to file for hearing it on merits. 2. The appellant before this Court was the defendant in OS 402/1999, he suffered a decree. He filed an appeal as AS129/2005. According to the appellant, the appeal was posted to 29.03.2011. His counsel was unwell and a petition was filed for adjournment, it was rejected and the appeal was dismissed for default. Thereafter the appellant filed IA.724/2011 for restoration of the appeal on the same day. It so happened that the court after considering the matter found that there were no justifiable reasons for restoration and dismissed the petition. That brings the appellant before this Court. 3. The initial order of dismissal of the restoration :2: F.A.O.No.238 of 2011 application was set aside by this Court and the lower court was directed to reconsider the petition. The lower appellate court after reconsideration dismissed the petition again. 4. The learned counsel for the appellant pointed out that the lower appellate court ought to have restored the appeal in file and heard it on merits. Justifiable reasons were given for the absence of the lawyer on the day which the appeal was posted for hearing and a petition for adjournment was also moved. The reasons given for rejecting that application, according to the learned counsel are clearly unsustainable and by the dismissal of that petition considerable prejudice has been caused to the appellant. It is pointed out that unless the appeal for restoration is heard on merits, it will cause irreparable injuries to the appellant. 5. The learned counsel appearing for the respondent in this appeal pointed out that there is no justification for showing any leniency to the appellant for the appeal was :3: F.A.O.No.238 of 2011 dismissed for default for all the three occasions. Adv. Mr. Kishore appearing for the second respondent pointed out that the number of adjournments are so many that it is not proper on the part of the appellant to contend opportunity was denied to him for having the appeal heard on merits. It was pointed out that execution petition posted for delivery and several adjournments have been taken out to protract the proceedings and lower court was therefore justified in dismissing the petition. 6. The contention of the learned counsel for the appellant was that, the court needs to look into whether there were justifiable reasons for the adjournment on the day on which the case was posted and previous history was not relevant is difficult to accept. The learned counsel relied on the decision reported in G.P.SRIVASTAVA Vs.R.K.RAIZADA AND OTHERS [(2000)3 SCC54] in support of his proposition that previous history is irrelevant and the court has only to see the reason given for the day on which :4: F.A.O.No.238 of 2011 the adjournment is sought for. 7. In the case on hand unlike in the other case, as pointed out by the learned counsel for the respondent a large number of adjournments had been granted by the lower court and sufficient intelligence was shown by the court below. 8. Strictly speaking, on merits, the order of the court below cannot be faulted. But the fact remains that the lower appellate court has not considered the appeal on merits. Being the first appellate court, the appeal needs to be heard on merits. In order to avoid further delay in the disposal of the appeal it is felt that it is it will be appropriate to allow the appeal and direct the lower appellate court to decide the appeal on merits. This appeal is allowed and the impugned order is set aside. The appeal is restored to file . As per the direction of this Court the appellant has to file an affidavit before this Court that he will not seek any further adjournment if this :5: F.A.O.No.238 of 2011 Court directs the lower appellate court to have the matter heard on merits. The parties shall appear before the lower appellate court on 04.10.2011. The lower appellate court may fix a date for hearing of the appeal and on that day the appeal shall be heard and taken of for disposal. P.BHAVADASAN JUDGE kkj