IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 27TH OCTOBER 2010 / 5TH KARTHIKA 1932 RSA.No. 346 of 2010() --------------------- AS.136/2008 of DISTRICT COURT & SESSIONS COURT,KOLLAM OS.756/1997 & O.S.272/1992 OF MUNSIFF COURT, KARUNAGAPPALLY .................... APPELLANTS/APPELLANTS/PLAINTIFF(S): -------------------- 1. KHADEEJA UMMA KUNJU, RESIDING AT HOTEL JASMIN, BRIDGE P.O., CHAVARA VILLAGE, FROM CHUNKATHIL VEEDU, VADAKKUM MURIPADINJATTEKKARA MURI,THAZHAVA VILLAGE (DIED). 2. AFZATH, THEETTAPPARAMBIL VEEDU, KUMBALANGI, KOCHI. 3. ABDUL MAJEED, S/O.ANDULKHADDAR KUNJU, AGED 47 RESIDING AT CHUNKKATHIL HOUSE, THAZHAVA VADAKKAN MURI, KUTHIRAPPANTHI P.O., KOLLAM. 4. BADARUDEEN KUNJU, -DO-, CHUNKATHU VEEDU, VADAKKUM MURI, PADINJAREKKARA MURI, THAZHAVA VILLAGE. 5. BOOFATHUMMA KUNJU, D/O.ABDUL KHADAR KUNJU, THUNDIL VEEDU, VAKKAM VILLAGE, NOWLAVI JUNCTION FROM CHUNKATHIL VEEDU, THAZHAVA VILLAGE. 6. ARFA BEEVI, CHUTTUVILAYIL VEEDU, THAMARAMKULAM VILLAGE FROM -DO- 7. SUBAIR KUTTY, CHUTTUVILAYIL VEEDU, THAMARAMKULAM VILLAGE. BY ADV. SRI.A.X.VARGHESE SRI.A.V.JOJO RESPONDENT(S)/RESPONDENTS/DEFENDANTS: --------------- 1. AYSHA BEEVI, HOUSE NO.10, SOUTH LEKSHHAM VEEDU, MADATHIL KARANMA, OACHIARA VILLAGE, FROM CHUNKATHIL VEEDU, THAZHAVA VILLAGE. R.S.A.NO.346/2010 2. SHAFEER. S/O.ISMAIL KUNJU, RESIDING AT ROSE HOUSE, THEKKE MURI, VAIIIKUNNAM VILLAGE. ADV. SRI.RAJA VIJAYARAGHAVAN FOR R2 SRI.M.T.SURESHKUMAR FOR R2 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 27/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- R.S.A.NO.346 OF 2010 ----------------------------------- Dated this the 27th day of October, 2010 J U D G M E N T Plaintiffs in O.S.No.272 of 1992 on the file of the Munsiff Court, Karunagappally, has filed this appeal. Their suit for a declaration and injunction was dismissed by the trial court after a joint trial with another suit, O.S.No.756 of 1997, which was filed by the 2nd respondent herein as plaintiff for a decree of injunction. Though there is some disparity and difference with respect to the property scheduled in both the suits, it is submitted that the issues involved for adjudication were identical, and as such, joint trial was ordered, which ultimately resulted in passing of a common judgment, dismissing O.S.No.272 of 1992 and decreeing of O.S.No.756 of 1997. The 1st respondent in the present appeal (1st defendant in O.S.No.272 of 1992) was the 8th defendant in O.S.No.756 of 1997 filed by the present 2nd respondent as plaintiff. As against the decision rendered in the suits, two appeals were preferred, one by the R.S.A.NO.346/2010 2 plaintiffs of O.S.No.272 of 1992, and the other jointly by all the defendants in O.S.No.756 of 1997. Those appeals were taken and received on the file of the District Court, Kollam as A.S.No.135 and 136 of 2008, the former arising from the dismissal of O.S.No.272 of 1992 and the latter against the decree passed in O.S.No.756 of 1997. A.S.No.136 of 2008 was dismissed by the lower appellate court for the reason there was default on the part of the appellants in taking steps as against the 1st respondent in time despite extending several opportunities to do so. Since the suit was one for declaration, non-taking of steps against one of the defendants in the appeal after the dismissal of the suit, it was held by the lower appellate court would entail the decision rendered by the trial court with finality, and in that view of the matter, the appeal as against both the respondents were dismissed. Challenging the dismissal of that appeal, the present second appeal has been preferred. 2. Notice being issued to consider the admissibility of the appeal, the 2nd respondent has entered appearance through R.S.A.NO.346/2010 3 counsel. Service as against the 1st respondent was declared sufficient by this Court. 3. At the time of hearing, the learned counsel for the appellants brought to my notice that in the connected appeal, A.S.No.135 of 2008, the 1st respondent in A.S.No.136 of 2008 was one among the appellants, that is, the 8th appellant, and as such, it was well within the powers of the court below to dispense with notice to the 1st respondent in the appeal as both the appeals have arisen from a common judgment rendered in two suits. It is submitted by inadvertence there was default on the part of the counsel appearing for the appellants to bring to the notice of the court the above aspect and that eventually had resulted in dismissal of the appeal A.S.No.136 of 2008 for the default in taking steps against the 1st respondent in that appeal. It is further submitted that in both appeals, A.S.Nos.135 of 2008 and 136 of 2008, the same counsel is appearing on behalf of the respective appellants in both appeals for prosecuting them, and in such circumstances, the parties in such appeal should be R.S.A.NO.346/2010 4 deemed to be having knowledge of both the appeals and, as such, further notice to the 1st respondent could be dispensed with. The learned counsel also further submits that the counsel appearing for the appellants would file such a statement also in A.S.No.136 of 2008 before the lower appellate court for dispensing with notice to the 1st respondent in that appeal, who is one among the appellants in the connected appeal arising from the common judgment rendered by the trial court. 4. Having regard to the submissions made by the counsel and also the facts and circumstances as indicated above, I find the dismissal of A.S.No.136 of 2008 for the reason that there was default on the part of the appellants therein to take steps against the 1st respondent, warrants interference, and it is so ordered. Setting aside the dismissal of the appeal, the court below is directed to take back the file A.S.No.136 of 2008 and pass appropriate orders with respect to the service on the 1st respondent in the appeal taking note that that respondent is one among the appellants in the connected appeal. No further notice R.S.A.NO.346/2010 5 need be ordered to the 1st respondent in such appeal if any statement is filed by the counsel for the appellants to dispense with the service stating the reason as aforesaid. Parties are directed to appear before the lower appellate court on 25.11.2010. Appeal is disposed of accordingly. S.S.SATHEESACHANDRAN JUDGE prp R.S.A.NO.346/2010 6