IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 13TH AUGUST 2008 / 22ND SRAVANA 1930 F.A.O.No. 128 of 2007() ---------------------------- AGAINST THE ORDER DATED 09/02/2007 IN IA 983 OF 2006 IN AS.21/2005 of SUB COURT, HOSDRUG OS.393/1998 of MUNSIFF COURT, HOSDURG .................... APPELLANT/PETITIONER/IST APPELLANT/IST DEFENDANT : ------------------------------------------------------------------------- K.J.RAJAPPAN, AGED 40 YEARS, S/O.JANARDHANAN, RESIDING AT KADUMENI, CHITTARIKKAL VILLAGE, HOSDURG TALUK. BY ADV. SRI.P.J.ANTONY SRI.G.RAJAGOPAL SRI.THOMAS M.JACOB RESPONDENT/IST RESPONDENT/RESPONDENT/PLAINTIFF/ADD.RES. 2 TO 9 : ----------------------------------------------------------------------------------------------- 1. CHERALAN KIZHAKKEKARA VEETTIL KUNHAMBU, AGED ABOUT 57 YEARS, S/O.VELAYUDHAN, RESIDING AT PAYRATT, CHEEMENI VILLAGE, HOSDURG TALUK. * 2. KUNJAKKA, AGED ABOUT 80 YEARS, W/O.LATE KUNHAMBU, CHEEMENI P.O., KASARGOD DISTRICT * 3. PADMANABHAN, AGED ABOUT 58 YEARS, S/O.LATE KUNHAMBU, KAMBALLOORE P.O., PERALAM, KASARGOD DISTRICT * 4. K.LAKSHMANAN, AGED ABOUT 55 YEARS, S/O LATE KUNHAMBU, KOTTEN HOUSE, CHEEMENI P.O., KASARGOD DISTRICT F.A.O.NO.128/2007 * 5. PRABHAKARAN, AGED ABOUT 50 YEARS, S/O.LATE KUNHAMBU, BANK EMPLOYEE, UDINOOR POST, KASARGOD DISTRICT. * 6. DEVAKI, AGED ABOUT 62 YEARS, D/O.LATE KUNHAMBU, W/O.NARAYANAN ALAKKADAN, KOTTEN HOUSE, OLATTU P.O., KODAKKADU, TRIKKARIPOOR VIA, KASARGOD DISTRICT * 7. NALINI, AGED ABOUT 48 YEARS, D/O.LATE KUNHAMBU, W/O.KARUNAKARAN PILAKA, KOTTEN HOUSE, VELLACHAL P.O., KASARGOD DISTRICT * 8. REMANI, AGED ABOUT 46 YEARS, D/O.LATE KUNHAMBU, W/O.LATE P.T.VIJAYAN, KOTTEN HOUSE, NEAR KARIVELOORE GOVERNMENT HOSPITAL, KASARGOD DISTRICT. * 9. VALSALA, AGED ABOUT 42 YEARS, D/O.LATE KUNHAMBU, W/O.MADHAVAN KADUKKEN, KOTTEN HOUSE, CHEEMENI P.O., KASARGOD DISTRICT BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR (*R2 TO R9 ARE IMPLEADED AS ADDITIONAL RESPONDENTS AS PER ORDER DATED 13.08.2008 IN I.A.NO.4768/2007) THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 13/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: F.A.O.NO.128/2007 ORDER ON I.A.NO.1535/2007 IN F.A.O.NO.128/2007 DISMISSED 13.08.2008 SD/-, M.N.KRISHNAN, JUDGE -TRUE COPY- P.A. TO JUDGE pac M.N. KRISHNAN, J. ------------------------------ F.A.O.No. 128 of 2007 ------------------------------ Dated this the 13th day of August, 2008 JUDGMENT This appeal is preferred against the order of the Subordinate Judges Court, Hosdurg in I.A. No. 983/2006 in A.S. No. 21/2005. An application for readmitting the appeal was dismissed and it is against that decision, the present F.A.O is preferred. There were two appellants in the case. The second appellant died. The first appellant filed applications for impleading legal representatives of the second appellant with a petition to set aside abatement and condonation of delay. These applications were dismissed. Subsequently, the case was posted for hearing, on which day, the counsel for the appellant did not turn up and the appeal was dismissed. In the application for readmission it was stated that the case bundles were taken to the advocate at Ernakulam and a request was made for taking adjournment, but in examination, the appellant submitted before the court that he had requested the advocate to proceed with the case. So, it is true there is F.A.O.No. 128/2007 Page numbers inconsistency. It has to be remembered, the broad principle of Natural Justice requires the matter to be heard and disposed on merit as far as possible, unless there is grave misconduct or gross negligence. In the decision reported in [1968 KLT 599], it is held that if some evidence is adduced and if some materials are placed, then it is always desirable that an opportunity can be given. This court held that “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 in the background while ascertaining whether there is sufficient cause. ” I feel in the light of the said principles and materials supplied, though there is some carelessness, an opportunity has to be given. Therefore, the F.A.O is allowed and the order under challenge is set F.A.O.No. 128/2007 Page numbers aside and direction is given to the subordinate court to restore A.S. 21/2005 to file and dispose the matter after affording an opportunity to the appellant to proceed with the case. Being an old matter, the matter be disposed of within a time frame of four months from the date of restoration. M. N. KRISHNAN, JUDGE scm