IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 29TH MARCH 2011 / 8TH CHAITHRA 1933 MJC.No. 561 of 2010() --------------------- AGAINST THE JUDGEMENT/ORDER IN SA.515/1995 .................... PETITIONERS/APPELLANTS -------------------------------------- 1. DR.TOMY VARGHESE, S/O.T.L.VARGHESE, THEKKUMTHALA HOUSE, KORATTY, THRISSUR DISTRICT. 2. SISTER ANJALOSE, D/O.LATE ROSSA, ADORATION CONVENT, ELAVOOR PO., 3. SISTER GEORGINA, D/O.LATE ROSSA, NIRMALA BHAVAN, THODUPUZHA. BY ADV. SRI.P.R.VENKETESH RESPONDENTS/RESPONDENTS: ---------------------------------------------- 1. KARTHYAYANI, WIDOWM OF RAMAN, KAMATTATHIL CHATHU, MURINGOOR, THEKKUMMURI VILLAGE, MUKUNDAPURAM TALUK. 2. DAMAYANTHI, D/O.LATE RAMANAN, DO. DO. DO. THIS MISCELLANEOUS JURISDICTION CASE HAVING COME UP FOR ADMISSION ON 29/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK P.S.GOPINATHAN, J. ====================== MJC No.561 OF 2010 in SA No.515 OF 1995 ====================== Dated this the 29th day of March, 2011. O R D E R This is a petition to restore the appeal which was dismissed for default. By an affidavit filed by the learned counsel appearing for the appellant as well as by another affidavit filed by an associate lawyer, they would aver that though the associated lawyer was ready to argue the matter, he was held up in another court when the case was taken up and thus there occurred default and there is no negligence or laches on the part of the appellant. Going by the records, it is seen that the appeal was dismissed for default on the third time and there is little merit in the submission made by the learned counsel. This second appeal arises out of a suit of the year 1978. Original plaintiff died and his widow and children are fighting to have a finality. Petitioners appear to be mighty. However, taking note that the affidavit was filed by the counsel appearing for the appellants and that interest of justice demands decision MJC No.561 OF 2010 in SA No.515 OF 1995 2 on merit, I find that the appellant can be given one more opportunity on stringent conditions to test the bonafides. In the result, this petition is allowed on condition that the petitioners shall pay a sum of Rs.3,000/- to the respondents as cost within 7 days, failing which this petition would stand dismissed. P.S.GOPINATHAN, JUDGE mns