IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 9TH FEBRUARY 2011 / 20TH MAGHA 1932 FAO.No. 21 of 2010() ------------------------------ IA.1168/2006 IN CMA.26/2000 of SUB COURT, MUVATTUPUZHA .................... APPELLANT/PETITIONER/APPELLANT -------------------------------------------------------- BABY, AGED 57, S/O.THOMAS, PANAKAL, KUNNACKAL KARA, MUVATTUPUZHA. BY ADV. SRI.P.N.RAMAKRISHNAN NAIR, SRI.P.VISWANATHAN. RESPONDENTS/RESPONDENTS 2 TO 4/RESPONDENTS 2 TO 4 --------------------------------------------------------------------------------------------- 1. VARGHESE, AGED ABOUT 49, S/O.LATE ANNAM, VELLUKUZHIUIL, KUNNACKAL, VILLAKAM VILLAGE, MUVATTUPUZHA TALUK. 2. JOSEPH, AGED 43, S/O.LATE ANNAM, VELLUKUZHIUIL, KUNNACKAL, VILLAKAM VILLAGE, MUVATTUPUZHA TALUK. 3. SOSAMMA, AGED ABOUT 38, D/O.LATE ANNAM, VELLUKUZHIUIL, KUNNACKAL, VILLAKAM VILLAGE, MUVATTUPUZHA TALUK. BY THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 09/02/2011, ALONG WITH F.A.O. NO.27 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs FAO.No. 21 of 2010 ORDER ON I.A. NO.422/2010 IN F.A.O. NO.21/2010 DISMISSED 09/02/2011. SD/- HARUN-UL-RASHID, JUDGE //TRUE COPY// P.S. TO JUDGE rs HARUN-UL-RASHID,J. ------------------------------- F.A.O. NOS. 21 & 27 OF 2010 ------------------------------- DATED THIS THE 9TH DAY OF FEBRUARY, 2011 JUDGMENT Appellant herein is the appellant in CMA.Nos.26/2000 and 27/2000 on the file of the Sub Court, Muvattupuzha. The appellant is the sole defendant in O.S.No.173/1992. The suit was filed for recovery of possession based on title was decreed. The decree holder filed execution petition. The appellant did not enter appearance before the execution court. Therefore, an order was passed by the said court setting the appellant ex parte. The appellant, who is the judgment debtor filed E.A.No.108/99 to set aside the ex parte order. Pending consideration of the said EA, the execution court ordered delivery of the property. The appellant filed EA.No.11/2000 to set aside the order of delivery. The execution court dismissed both these applications by a common order dated 10/10/2000. The above C.M.As. are filed challenging the common order passed in EA.Nos.108/99 and 11/2000 -2- F.A.O.Nos.21 & 27/2010 respectively. 2. The Appellate Court posted the above appeals for hearing on 25/7/2006. On that day the learned counsel appearing for the appellant in the said appeals was absent. It was represented before the appellate court that the uncle of counsel meat with an accident at 9 a.m. on 25/7/2006 and that he was admitted in the Lakeshore Hospital, Ernakulam. The counsel went to the hospital to look after his uncle and therefore he entrusted the case to another Advocate Sri P.R. Rajeev for making representation before the court. Though the facts were represented, the appellate Court did not adjourn the appeals and they were dismissed on the same day stating that the appellant was not ready for hearing. After dismissal of the both appeals, the appellant filed IA.No.1168/06 in CMA.No.26/2000 and IA.No.1118/2006 in CMA.No.27/2000 to re- admit the appeal. The Appellate Court by common order dated 17th October, 2009 dismissed the said IAs. The said common order is under challenge in these appeals. -3- F.A.O.Nos.21 & 27/2010 I have examined the reasons mentioned in the affidavit filed n support of the respective IAs. for re-admission of the appeals. The learned Sub Judge did not consider the reasons state by th appellant in both the appeals in the right perspective. The learned Judge observed that the reasons stated by the petitioner in the affidavit are not inspiring confidence. The said observation is made without any basis. The court was not inclined to allow the application for re-admission for the reason that CMAs. were pending for about six years. That also may not be a reason for not allowing the application filed sufficiently explaining the cause for non-appearance of the counsel on the date of hearing. The learned Judge also considered the appeals on merits and held that the appellant has no arguable case. The appeals happened to be dismissed on a particular day for the reason that the counsel could not appear and argue the case. The reason for his non-appearance on that day was stated in the application for re- admission. In fact, there is no reason for disbelieving the counsel, -4- F.A.O.Nos.21 & 27/2010 who has stated that his uncle met with an accident at 9 a.m. on the same day and he was admitted in the Lakeshore Hospital. It is fact that the appeals were not heard and decided on merits. The only reason for non-consideration of the appeals on merits is the non- appearance of the counsel on the date of hearing. So far as the appellant is concerned, he has got genuine grievance that his case was not disposed of without considering his contentions. In fact, when the appeals were taken up for hearing, it was submitted that the counsel could not appear on that day. That should have been taken as a good reason for granting adjournment. The learned Judge observed that three lawyers have filed Vakkalath and one among them could have appeared and argued the case. In a lawyer's office along with the senior lawyer there may be several lawyers available with him. Only one of the lawyers can prepare and argue the case. Usually, the senior lawyer will entrust the case to other lawyers or he himself will argue the case. These are all matters which the court visualise in a case. The representation made -5- F.A.O.Nos.21 & 27/2010 should have been taken into account and the court below should have adjourn the case. The dismissal of the appeals should have been avoided in the given circumstances. In the result, the appeals are allowed. The impugned orders are set aside. The applications for re-admitting the appeals are allowed. The Sub Judge, Muvattupuzha shall hear and dispose of the appeals at an early date, at any rate, within a period of six months from the date of receipt of the copy of the judgment. Though notice was served on the respondents, there was no appearance on their side. Therefore, the court below shall issue notice to the respondents before hearing. HARUN-UL-RASHID, Judge. kcv. -6- F.A.O.Nos.21 & 27/2010