IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 25TH JUNE 2008 / 4TH ASHADHA 1930 CMA.No. 209 of 2000() --------------------- AGAINST THE ORDER DATED 31/07/2000 IN AS.16/96 IN IA.703/1997 of SUB COURT, MANJERI .................... APPELLANTS:APPELLANTS: ------------------------------------------ 1. KOLUTHUMTHODI ABDULLA ( D I E D) S/O.ALI HAJEE, IRUVETTI AMSOM, ERNAD TALUK. 2. ABDURAHIMAN, ...DO...DO... 3. MOHAMMED, ........DO....DO..... 4. FATHIMA, ..............DO....DO...... 5. SUHARA, ...............DO....DO....... 6. SAKKEENA, .........DO.....DO........ 7. AYISHAKUTTY, W/O.ALI HAJEE, ...DO...DO...... BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENTS: RESPONDENTS: -------------------------------------------------- 1. PALOIPARAMBAN ARAMUGHAN, S/O.PALOIPARAMBAN PAARANGODAN, KAVANOOR AMSOM, ERNAD TALUK. 2. PERAVANKUTTY, ...DO..DO.... Kss ..2/- ...2.... C.M.A.NO.209/2000 3. PARANGODAN, S/O.PALOIPARAMBAN PARANGODAN, KAVANOOR AMSOM, ERNAD TALUK. 4. RAMANKUTTY, ..DO...DO..... 5. CHILLA, ......DO......DO........ 6. KALI, .........DO........DO........ 7. CHEERU, ...DO...DO......... 8. UNNOOLI (DIED) , W/O.PALOIPARAMBAN PARANGODAN, ..DO... BY ADV. SRI.T.KRISHNANUNNI (SR.) - R2 SRI.SAJU.S.A - R2 THIS CIVIL MISC. APPEAL HAVING BEEN FINALLY HEARD ON 25/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON C.M.P.NO.6038/2000 IN C.M.A.NO.209/2000 DISMISSED 25/06/2008 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.S. TO JUDGE Kss M.N.KRISHNAN, J ===================== CMA No.209 OF 2000 ===================== Dated this the 25th day of June 2008 JUDGMENT This appeal is preferred against the order in I.A.No.703 of 1997 in A.S.No.16 of 1996 of the Sub Court, Manjeri. It is an application for restoration of the appeal dismissed for default for not taking steps. It is contended that the 2nd appellant was away at Bombay and therefore he was unable to come and contact the Lawyer and take sufficient steps for completion of service. Therefore appellants pray for an opportunity. 2. On the other hand, the learned counsel for respondents would submit that the litigation has started as early as in 1978 which attained finality in the year 1982 and thereafter plaintiffs have restarted the litigation in the year 1987 by filing a suit for recovery of possession. It went against the plaintiffs and it is against that decision, A.S.No.16 of 1996 is preferred before the Subordinate Judge's, Manjeri. The trial court held that there has been laches on the part and the litigation is having a very prolonged career and so did not use its discretion to restore the appeal. The appeal is dismissed for non-prosecution on account of not taking steps. If the CMA 209/2000 -:2:- plaintiffs have got a bad case that can also be found by hearing the case on merits and one shall not shut out the opportunity and it is the plaintiffs who want recovery of possession it is desirable an opportunity is given. It is unfortunate that the matter has been pending in this Court for non- completion of service of notice for almost 7 or 8 years, but it should not stand in the way of rendering opportunity to the party to prosecute the case. Therefore, I allow the C.M.A and the order in I.A.No.703/1997 is set aside and A.S.No.16 of 1996 is restored. The Sub Court shall give opportunity to the appellant to complete the steps and proceed with the matter. Being a case of 1996, the appellants are co-operate with the court below for completion of service at the earliest and hearing it expeditiously. Parties are directed to appear before the Sub Court on 24.7.2008. M.N.KRISHNAN, JUDGE Cdp/-