IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 24TH OCTOBER 2011 / 2ND KARTHIKA 1933 FAO.No. 289 of 2010() --------------------- AGAINST THE ORDER ON IA NO.594/09 IN AS.117/2008 OF SUB COURT, CHENGANNUR .................... APPELLANTS/APPELLANTS 1 & 2 ----------------------------------------------- 1. GOPALAKRISHNAN NAIR, PANICKAVEETTIL, MUTHAVAZHI MURI, PANDANAD VILLAGE, CHENGANNUR. 2. MOHANAN NAIR, KALLOOMADATHIL, MUTHAVAZHI MURI, PANDANAD VILLAGE, CHENGANNUR. BY ADV. SRI.N.ASHOK KUMAR RESPONDENT(S): RESPONDENTS 1 TO 3 --------------------------------- 1. PUSHPA, AGED 50 YEARS, KADAPLAVIL VEEDU, MUNDANKAVU MURI, CHENGANNUR, PIN-689 121. 2. SAJI, AGED 27 YEARS, OF DO. DO. 3. SIJU, AGED 21 YEARS OF DO. DO. ADV. SRI.K.JAYARAJ FOR R1,3 SRI.JAYAKRISHNAN FOR R2 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 24/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------- F.A.O. No.289 of 2010 ------------------------------------- Dated this the 24th day of October 2011 Judgment This appeal is directed against the order dated 15.10.2009 on IA No.594/09 in AS No.117/08 before the Sub Court, Chengannur. By the said order, the court below dismissed the application for restoration of the appeal consequent on the dismissal of the petition to condone the delay in filing the restoration application. 2. The suit was one for specific performance. It was resisted by the defendants. The court below exercising its discretion under Section 20 of the Specific Reliefs Act, directed return of the advance amount and denied specific performance of the contract. Aggrieved by that portion of the decree, the plaintiffs took up the matter in appeal before the District Court, Mavelikkara. 3. It is pointed out that while the appeal was pending before the District Court, Mavelikkara, a sub court FAO 289/10 2 was established at Chengannur and the appeal stood transferred to the latter court. The appellants say that the appeal was taken up before the Sub Court, Chengannur and due to the default on the part of the appellants, the appeal was dismissed for default by order dated 22.1.2009. When the appellants came to know about the same, they filed IA No.594/09 in AS No.117/08 to restore the appeal to file and to have it heard on merits and also IA No.593/09 to condone the delay of 198 days in filing the petition for restoration of the appeal. 4. In the affidavit filed in support of the petition to condone the delay, it was pointed out by the appellants that there was no wilful laches or negligence from their part in not being represented on the day on which the matter was taken up for consideration before the Sub Court, Chengannur. It was also stated in the affidavit that the appellants expected that notice would be received from the Sub Court, Chengannur and they remained under that impression. Later, when they enquired with their counsel, FAO 289/10 3 they came to know that the appeal has been dismissed for default. It is also pointed out that during that period, the deponent was laid up due to rheumatism and he could not contact his counsel personally. In the petition, it was stated that there was a delay of 198 days and in the above circumstances, the delay be condoned. 5. It appears that no counter affidavit was filed on behalf of the respondents in the delay condonation petition. Strangely enough, the lower appellate court took a very technical view and dismissed the delay condonation petition, stating that the number of days of delay is not mentioned in the affidavit. After dismissing the petition for condonation of delay, the petition to restore the appeal was also dismissed. One can only say that the act of the lower appellate court is quite unfortunate and uncharacteristic of a court which is supposed to do justice to parties. The petitioners have clearly stated the number of days of delay in the petition and no counter affidavit was filed by the respondents to the petition for condonation of delay. Under FAO 289/10 4 these circumstances, the court below ought to have allowed the petition and restored the appeal to file. Moreover, the court below has not doubted the reasons given by the appellants for the delay. In the result, this appeal is allowed. The order on IA No.593/08 is set aside and the said IA is allowed. Consequently, IA No.594/08 also stands allowed and the appeal shall stand restored to file. The parties shall appear before the lower appellate court on 09.11.2011. The lower appellate court may make every endeavour to dispose of the appeal as expeditiously as possible, at any rate, within two months from the date of appearance of parties before it. P.Bhavadasan, Judge sta FAO 289/10 5