IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR FRIDAY, THE 22ND FEBRUARY 2008 / 3RD PHALGUNA 1929 FAO.No. 291 of 2004() --------------------- AGAINST THE ORDER DATED 29/03/2004 IN IA 888/03 IN AS.7/1994 of SUB COURT, PALA .................... APPELLANTS/PETITIONERS/APPELLANTS: ------------------------------------------------ 1. MATHAI JOSEPH, NJALLAMPUZHA HOUSE, TEEKOY, NADACKAL KARA, POONJAR NADUBHAGAM VILLAGE, MEENACHIL TALUK. 2. JOYAMMA, D/O.JOSEPH, NJALLAMPUZHA HOUSE, TEEKOY, NADACKAL KARA, POONJAR NADUBHAGAM VILLAGE, MEENACHIL TALUK. 3. JAISAMMA, D/O.JOSEPH, NJALLAMPUZHA HOUSE TEEKOY, NADACKAL KARA, POONJAR NADUBAHGAM VILLAGE, MEENACHIL TALUK. 4. MARY, W/O.JOSEPH, NJALLAMPUZHA HOUSE, TEEKOY, NADACKAL KARA, POONJAR NADUBHAGOM VILLAGE, MEENACHIL TALUK. BY ADV. SRI.M.P.MADHAVANKUTTY RESPONDENTS: RESPONDENTS/RESPONDENTS: ------------------------- 1. MATHAI MATHAI, NJALLAMPUZHA HOUSE, VELLANIKKARA, POONJAR VADAKKE KARA VILLAGE. 2. MATHAI MATHEW, S/O.MATHAI MATHAI, NJALLAMPPUZHA HOUSE, VELLANIKKARA, POONJAR VADAKKE VILLAGE. BY ADV. SRI.P.C.HARIDAS THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 22/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. PADMANABHAN NAIR ,J. ------------------------------------------------- F.A.O.No.291 of 2004 ------------------------------------------------- Dated, this the 22nd day of February, 2008 JUDGMENT Heard. Admitted. Advocate Shri P.C.Haridas takes notice for respondents. Appeal itself is heard and disposed of. 2. The only point arising for consideration is whether the application filed by appellants under Order XLI Rule 19 of Civil Procedure Code for restoring an appeal dismissed for default is to be allowed or not. 3. Petitioners are appellants in A.S.No.7/1996. After lapse of eight years the appeal came up for hearing in the special list. Counsel appearing for the appellants was absent. A submission was made through another lawyer for time. That was rejected and the appeal was dismissed for default. Thereafter I.A.No.888/2003 under Order XLI Rule 19 of Civil Procedure Code was filed for re-admitting the appeal which was dismissed for default. The only reason stated was that counsel appearing for the appellants fell ill and as such he could not appear before the court and argue the matter. Learned Sub Judge took a view that non-production of medical certificate to prove that the lawyer was ill was fatal to the application and dismissed it. Challenging that order this F.A.O. is filed by 2 the appellants. 4. It is true that the appeal was pending from 1996 onwards and it was posted for hearing in the year 2003. Even assuming that the reason stated by the lawyer is not true, the party should not have been penalised for the fault of the lawyer. I am of the considered opinion that the learned Sub Judge ought to have given one more opportunity to the appellants to contest the matter on merits. Being an appeal of 1996 a time limit has to be prescribed and if the appellants again attempt to protract the matter, no further time need be given after the expiry of the period fixed by this Court. In the result, appeal is allowed. The order passed by the learned Sub Judge dismissing I.A.No.888/2003 in A.S.No.7/1996 is hereby set aside. I.A. is allowed and A.S.No.7/1996 is restored to file. There will be a direction to the lower appellate court to hear and dispose of the appeal within a period of six months from the date of appearance of parties. Parties shall appear in the court below on 12.3.2008. K. PADMANABHAN NAIR, JUDGE. cks