IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 8TH JANUARY 2009 / 18TH POUSHA 1930 FAO.No. 299 of 2007() ------------------------------ AGAINST THE ORDER DATED 09/02/2007 IN IA.1075/2006 IN AS.24/2004 of SUB COURT, HOSDRUG .................... APELLANT(S) /APPELLANT/PLAINTIFF ---------------------- K.P.RAGHAVAN PILLAI, AGED 82 YEARS, S/O. PARAMESWARAN MENON, RESIDING AT KOVATHARAKKAL HOUSE, CHENGAVARA,BEEMANADI VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. BY ADV. SRI.T.MADHU RESPONDENT(S): RESPONDENT/DEFENDANT --------------------------- THOMAS, S/O. JOSEPH, RESIDING AT VARANATH HOUSE, CHENGAVARA, BEEMANADI VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. ADV. SRI.V.N.RAMESAN NAMBISAN FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 08/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J ----------------------- F.A.O.No. 299 OF 2007 --------------------------------- Dated this the 8th day of January, 2009 JUDGMENT This appeal is preferred against the order in I.A. 1075/2006 in A.S. 24/2004 on the file of the Subordinate Judge, Hosdurg. The appeal was dismissed for default and an application is filed under Order 41 Rule 19 of C.P.C for re-admission of the appeal. It also met with the same fate and therefore the appellant has come up in appeal against that order. 2. Heard the learned counsel for both sides. The reason averred in the application is that the appellant was suffering from cataract and he could not contact the advocate as a result of which, the counsel reported no instructions which ultimately resulted in the dismissal of the appeal. It is a settled proposition of law that as far as possible the matters should be heard on merits. In the decision reported in Sreedhara Kurup v. Mickel [1968 KLT 599] it has been held that: “It is largely a matter of wise discretion to be exercised by the court bearing in mind the wholesome principle that the right of a party to be heard should be negatived only if there is gross F.A.O.No. 299/07 -2- negligence or gross carelessness and that if some steps have been taken and application for restoration has been made with some diligence and some evidence adduced making out a sufficient cause for absence, restoration should be ordered, minor misconduct or laches being corrected by the common curative of costs.” 3. So unless there is gross negligence or grave misconduct an opportunity has to be given. Here the appeal was dismissed for default on 20.9.06 and within the statutory time the application for readmission has been filed. I do not feel that the court has to be too technical in rejecting the prayer for rehearing the appeal when it is always desirable that the matter be heard and disposed on merits. Therefore I am inclined to give a chance. So the order under challenge is set aside and the appeal is restored to file. The appellate court is directed to hear both sides and dispose of the matter in accordance with law. Parties are directed to appear before the appellate court for getting a date for hearing on 16.2.2009. F.A.O is disposed of accordingly. M.N. KRISHNAN,JUDGE vkm