IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 3RD DECEMBER 2008 / 12TH AGRAHAYANA 1930 FAO.No. 59 of 2007() -------------------- AGAINST THE ORDER DATED 22/07/2006 IN IA 298 2006 IN AS.19/2003 of SUB COURT, HOSDRUG .................... APPELLANT/PETITIONER/PLAINTIFF ------------------------------------------------- P.RAGHAVAN NAIR, DISTRICT EXECUTIVE OFFICER, KERALA MOTOR TRANSPORT WORKERS' WELFARE FUND BOARD, KANHANGAD, KASARAGOD DISTRICT. BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR RESPONDENT(S): RESPONDENT/DEFENDANT ------------------------------------------------- P.ABDUL ROOF, S/O. AHAMED HAJI, RESIDING AT JAWANA MANZIL, KOTTAPURAM, P.O.NILESHWAR, HOSDURG TALUK. ADV. SRI.D.KRISHNA PRASAD SRI.D.NARENDRANATH SRI.M.HARISHARMA SRI.T.P.ELDHOSE SMT.O.K.SANTHA THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 03/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = F.A.O. NO. 59 OF 2007 = = = = = = = = = = = = = = = Dated this the 3rd day of December, 2008. J U D G M E N T This appeal is preferred against the order of the Subordinate Judge, Hosdurg in I.A.298/06 in A.S.19/03. It was an application filed by the appellant before that Court for restoration of the appeal under Order 41 Rule 19 CPC. The application was filed in time but the Court below found that the reasons are not sufficient and therefore rejected the application. It is to be remembered that as far as possible in all cases matters are to be disposed of on merits rather than dismissing the same on technical grounds. This Court has cautioned on many occasions about the same and has also laid down the underlying principle that unless one is guilty of gross negligence or grave mis-conduct the broad principles of natural justice demands that the matter should be heard on merits. 2. Here, the learned Subordinate Judge had attempted to find fault with some dates in the affidavit filed F.A.O. 59 OF 2007 -:2:- regarding the departure to Trivandrum or coming back from Trivandraum and as everybody knows an appeal is a matter which has to be argued by counsel on proper instruction from the party. So on a reading of the order it would reveal that the party is not guilty of gross negligence or grave mis- conduct and therefore I feel this is a fit case where an opportunity has to be given to the party to contest the case on merits. But at the same time it has to be remembered that the case has to be disposed of in a time bound manner. Therefore the order under challenge is set aside and the appeal is restored to file and the appellate court is directed to dispose of the matter before it closes for summer holidays in 2009 after hearing all concerned. I wish and hope that the appellant shall not take unnecessary adjournments for protracting the matter. The FAO is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-