IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 19TH AUGUST 2008 / 28TH SRAVANA 1930 FAO.No. 184 of 2005() --------------------- AGAINST THE ORDER DATED 31/01/2005 IN IA 846/04 & 847/04 IN OS.737/1999 of PRL.SUB COURT,THRISSUR .................... APPELLANT/ADDL.3RD PLAINTIFF ----------------------------- MANOJ, S/O.ABOOBACKER, UDIYANATHAYIL HOUSE, PLOT NO.56, NEHRU NAGAR, KURIACHIRA. BY ADV. SRI.M.S.KALESH RESPONDENTS: ------------- 1. THRISSUR MUNICIPALITY, REPRESENTED BY SECRETARY, (NOW THRISSUR CORPORATION, REPRESENTED BY ITS SECRETARY). 2. SECRETARY, THRISSUR MUNICIPALITY, (PREVIOUSLY DESIGNATED AS MUNICIPAL COMMISSIONER) M.O.ROAD, THRISSUR (NOW THRISSUR CORPORATION). 3. STATE BANK OF INDIA, KURIACHIRA BRANCH, REPRESENTED BY ITS MANAGER. 4. MAIMOONA, W/O.LATE ABOOBACKER, UDIYANATHAYIL HOUSE, PLOT NO. 56, NEHRU NAGAR, KURIACHIRA. 5. SUJITHA, D/O.LATE ABOOBACKER, UDIYANATHAYIL HOUSE, PLOT NO.56, NEHRU NAGAR, KURIACHIRA. BY ADV. SRI.K.B.MOHANDAS FOR R1 & 2 SRI.LELLULAL T.G.THUNDATHIL FOR R1 & 2 SRI.P.C.HARIDAS FOR R4-5 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 19/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R.RAMAN & T.R.RAMACHANDRAN NAIR, JJ. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ F.A.O. No.184 of 2005 ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Dated this the 19th day of August, 2008 J U D G M E N T J U D G M E N T RAMAN, J. This is an appeal by plaintiff No.3 in O.S.No.737/1999 before the Sub-ordinate Judges Court, Thrissur, against an order passed by the court below in an application to set aside the ex parte order, and for restoration and also to condone the delay in filing the said application. Since there was a delay in filing this appeal, notice was ordered. Service is complete and after hearing the parties we condoned the delay, and when the matter came up for admission on 18/08/2008, we directed the appellant to serve a copy of the appeal memorandum on the counsel appearing for the respondents. 2. The suit O.S.No.737/1999 was originally instituted by the father of the appellant for an injunction. He died during the pendency of the suit and the appellant along with his sister and mother got impleaded as legal heirs to continue the suit. 3. Thereafter, when the case was posted for evidence before the court below, the counsel for the appellant/plaintiff submitted 'no instruction' and the same was dismissed for default. Later, an application was filed for restoration of the suit. Since there was a delay of 300 days, a petition for condonation of delay was also filed. The delay was not condoned. Consequently the application for F.A.O.No. 184 of 2005 -: 2 :- restoration was also dismissed. We have perused the order of the court below. The court below proceeded on the premise that since the counsel submitted 'no instruction', he has no locus standi to file the I.A. We cannot agree with this. May be the appellant's/plaintiffs's counsel before the court below had no instruction at the time of taking evidence. But, it cannot be said that he has no locus standi. especially when he received instructions and filed I.A based on such instruction. That court ought to have considered the matter on merits. 4. In the circumstances, the order impugned passed by the court below in I.A.No.847/2004 and I.A.No.846/2004 are set aside, and the matter is remanded to be reconsidered afresh by the court below and pass orders on merits. F.A.O is allowed as above. The parties shall appear before the court below on 17/09/2008. P.R.RAMAN, Judge T.R.RAMACHANDRAN NAIR, Judge ms