IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 16TH DECEMBER 2008 / 25TH AGRAHAYANA 1930 FAO.No. 210 of 2006() ----------------------------- I.A.NO.108/2006 IN AS NO.54/2002 OF SUB COURT, PALA ....................... APPELLANTS/PETITIONERS ----------------------------------------- 1. PARUKUTTY, W/O. RAGHAVAN, KURUMACKAL, VILAKKUMADOM KARA, POOVARANI VILLAGE. 2. SUKUMARAN, KARUMACKAL, -DO- -DO- 3. THANKAMANI, D/O. RAGHAVAN, -DO- -DO- 4. REMANI, D/O. RAGHAVAN, -DO- -DO- 5. SREENIVASAN, S/O. RAGHAVAN, -DO- -DO- 6. SUJATHA, D/O. RAGHAVAN, -DO- -DO- 7. SHAJI, S/O. RAGHAVAN, -DO- -DO- 8. SHABU, S/O. RAGHAVAN, -DO- -DO- 9. SHALAN, S/O. RAGHAVAN, -DO- -DO- 10. KAUSALYA, D/O. RAGHAVAN, -DO- -DO- 11. SUBADRA, D/O. RAGHAVAN, -DO- -DO- 12. GAYATHRI, D/O. RAGHAVAN, -DO- -DO- 13. RENUKA, D/O. RAGHAVAN, -DO- -DO 14. SATHYAVATHY, D/O. RAGHAVAN, -DO- -DO- BY ADV. SRI.R.SUDHIR FAO.No. 210 of 2006 RESPONDENTS/COUNTER PETITIONERS ---------------------------------------------------------- 1. JOSEPH THOMAS, S/O. K.J.THOMAS, KALLIVAYALIL, VILAKKUMADOM KARA, POOVARANI VILLAGE, REPRESENTED BY K.J.THOMAS. 2. K.J.THOMAS, S/O. JOSE, KALLIVAYALIL, VILAKKUMADOM KARA, POOVARANI VILLAGE, REPRESENTED BY K.J.THOMAS. ADV. SRI.S.V.BALAKRISHNA IYER (SR.) FOR R1 & R2 SRI.K.JAYAKUMAR FOR R1 & R2 THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 16/12/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ M.N. KRISHNAN, J. = = = = = = = = = = = = = = F.A.O. NO. 210 OF 2006 = = = = = = = = = = = = = = = Dated this the 16th day of December, 2008. J U D G M E N T This appeal is preferred against the order of the Subordinate Judge, Pala in I.A.108/06 in A.S.54/02. The appellants herein are the appellants in A.S.54/02. The said appeal was dismissed for default and an application under Order 41 Rule 19 CPC is filed to restore the appeal. The Court below dismissed the said application on three grounds namely (1) that adv. Narendrakumar did not have a vakalath in the appeal suit (2) the other advocates who appeared did not get ready and proceed with the matter and (3) sufficient opportunity has been given. 2. The learned judge had applied technicality more than the principles of substantial justice. Learned counsel for the appellant before me would submit that the other advocates were only juniors attached to Mr. Narendrakumar's office and the appeal was expected to be argued by the senior and therefore they sought time which F.A.O. NO. 210 OF 2006 -:2:- was declined by the trial court. There was representation for adjournments which was declined would indicate that there was earnestness on the part of the appellants to prosecute the case. As far as possible in cases it is desirable to dispose of the matter after hearing it on merits. In the decision reported in Sreedhara Kurup v. Mickel (1968 KLT 599) this Court had observed that unless there is gross negligence or grave mis-conduct opportunity should be given. It was held, “It is largely a matter of wise discretion to be exercised by the Court bearing in mind the wholesome principle that the right of a party to be heard should be negatived only if there is gross negligence or gross carelessness and that if some steps have been taken and application for restoration has been made with some diligence and some evidence adduced making out a sufficient cause for absence, restoration should be ordered, minor misconduct or laches being corrected by the common curative of costs. The brooding spirit of natural justice must be the background while ascertaining whether there is sufficient cause. F.A.O. NO. 210 OF 2006 -:3:- 3. One cannot find fault with the party when the parties expecting the senior to argue the case and it shall not be taken as a ground that a mere non-filing of a vakalath would show that the concerned advocate has no role to play when he is heading the office. Even otherwise in an appeal the most effective part is to be done by the lawyer rather than by the client and the appeal suit is of the year 2002. Therefore the Court should have shown some indulgence by giving an opportunity or at least by restoring the application. Therefore I am inclined to allow this appeal, set aside the order in I.A.108/06 and restore A.S.54/02 to file. The appellate court is directed to restore the appeal to file and give notice to the counsel appearing for the parties before the said Court. Then the said Court can fix a hearing date and thereafter dispose of the matter in accordance with law. The FAO is allowed accordingly. M.N. KRISHNAN, JUDGE. ul/-