IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 19TH OCTOBER 2010 / 27TH ASWINA 1932 WP(C).No. 15799 of 2010(O) -------------------------- AGAINST THE ORDER IN IA.26/09 &IA.27/09 IN AA.125/2000 of APPELLATE AUTHORITY (LR), ALAPPUZHA .................... PETITIONERS: --------------- 1. SHEEBA MATHEW, KURISUVEETTIL, MANCHADIKKARA, CHANGANASSERRY. 2. OMANA ANTONY, CHIRAYIL VEEDU, NETTOOR P.O., MARADU, KOCHI. BY ADV. SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN RESPONDENTS: --------------- 1. AVIRAH PUNNOOSE, MALIYAMPURAKKAL, PULINKUNNU, ALAPPUZHA. 2. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. ADV. SRI.P.KESAVAN NAIR FOR R1 SRI.K.G.CLEETUS FOR R1 GOVERNMENT PLEADER: ADV. SRI. B JAYASURYA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 15799 of 2010 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : APPLICATION FOR RESTORATION EXHIBIT P2 : APPLICATION IN I.A.NO.82 OF 2008 EXHIBIT P3 : APPLICATION DTD 27.03.2009 EXHIBIT P4 : APPLICATION FOR CONDONING the DELAY EXHIBIT P5 : ORDER OF THE APPELLATE AUTHORITY (LR) ALAPPUZHA IN I.A.NOS.26 and 27 OF 2009 RESPONDENTS' EXHIBITS: EXHIBIT R1(a): JUDGMENT DTD 16.11.2001 PASSED BY the APPELLATE AUTHORITY (LR), ALAPPUZHA True Copy P.A to Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P(C).No.15799 of 2010 --------------------------------------- Dated this 19th day of October, 2010 JUDGMENT This writ petition is in challenge of Ext.P5, order dismissing I.A.Nos.26 and 27 of 2009 in A.A.No.125 of 2000 of the Land Reforms Appellate Authority (for short, “the Appellate Authority”). Petitioners are legal representatives of the deceased kudikidappukaran. Respondent/landlord wanted kudikidappu to be shifted and filed O.A.No.891 of 1981 before the Land Tribunal. The Land Tribunal inspected the property and found that the alternative site suggested by respondents is suitable for erecting a homestead and accordingly allowed the application. That order was challenged in A.A.No.125 of 2000. That appeal was dismissed for default. Then came Ext.P1, application (I.A.No.27 of 2001 for its restoration) only to be dismissed again for default on 28-03-2008. Next time petitioners filed Ext.P2, I.A.No.82 of 2008 for restoration of I.A.No.27 of 2001 that application was dismissed for default on 26-09-2008. It is thereafter that petitioner filed I.A.Nos.26 and 27 of 2009 for restoration of I.A.No.82 of 2008 which was dismissed for default on 26-09-2008. I.A.No.27 of 2009 is to condone the delay of 152 days in filing W.P(C).No.15799 of 2010 : 2 : I.A.No.26 of 2009. It is contended that Ext.P5, order is illegal. According to the learned counsel, the alternative site suggested by respondents does not have road access and if that site is allotted to the petitioners, they may not be able to reside in the property. Learned counsel states that the report of the Advocate Commissioner would show lack of access to the alternative site. Learned counsel for respondent has given me a copy of report prepared by the Land Tribunal after local inspection which according to the learned counsel reveals that there is access to the alternative site. I am also given a copy of the order allowing the application for shifting. Learned counsel for petitioners contend that there was some lapse on the part of counsel who was appearing for petitioners. According to learned counsel, report prepared by the Land Tribunal should not have been used to base a decision. 2. Now I am concerned with the question whether Ext.P5, order is required to be interfered. It is seen that petitioners have been consistently remaining absent either when the appeal was taken up or when the applications for restoration of the appeal or for restoration of the application for restoration of the appeal were taken up. W.P(C).No.15799 of 2010 : 3 : 3. Learned counsel for petitioners state that petitioners were under the impression that counsel will be appearing for them on 09-07-2009. Having regard to that, I am inclined to give petitioners an opportunity to prosecute I.A.Nos.26 and 27 of 2009 but on terms of cost. Resultantly this writ petition is allowed and Ext.P5, order dismissing I.A.Nos.26 and 27 of 2009 is set aside on condition that petitioners deposited before the Appellate Authority Rs.2,500/- (Rupees Two Thousand Five Hundred Only) by way of cost for payment to respondents within three (3) weeks from this day. In case of non compliance this writ petition will stand in confirmation of Ext.P5, order. On deposit of cost within the time prescribed, Ext.P5, order will stand set aside and I.A.Nos.26 and 27 of 2009 restored to file in which case parties shall appear before the Appellate Authority on 10-11-2010. The deposit being made by petitioners in the Appellate Authority shall be with notice to the counsel for respondents. (THOMAS P JOSEPH, JUDGE) Sbna/-