IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 28TH NOVEMBER 2008 / 7TH AGRAHAYANA 1930 FAO.No. 90 of 2007() --------------------------- AS.164/2003 of DISTRICT COURT, PATHANAMTHITTA OS.338/2002 of MUNSIFF COURT, RANNI .................... APPELLANTS/RESPONDENTS 1 & 2/DEFENDANTS 1 & 2 ------------------------------------------------------------------------------- 1. JOSEPH VARGHESE, S/O.E.V.THOMAS, ELANJIPURATHU VEEDU, KOTTANGAL MURI, KOTTANGAL VILLAGE. 2. ELIYAMMA JOSEPH, ELANJIPURATHU VEEDU, KOTTANGAL MURI, KOTTANGAL VILLAGE. BY ADV. SRI.SATHISH NINAN SRI.SANTHOSH MATHEW RESPONDENTS/APPELLANT & 3RD RESPONDENT/PLAINTIFF & 3RD DFDNT -------------------------------------------------------------------------------------------------------------- 1. MUHAMMED HANEEFA, S/O.ABDUL KHADAR, PALLITHADATHIL, KOTTANGAL MURI, KOTTANGAL VILLAGE, MALLAPPALLY TALUK. 2. VARGHESE VARGHESE, ELANJIPURATHU VEEDU, KOTTANGAL MURI, KOTTANGAL VILLAGE. BY ADV. SRI.ESM.KABEER FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 28/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: FAO.No. 90 of 2007() ORDER ON I.A. NO. 968 OF 2007 IN F.A.O. NO. 90 OF 2007 DISMISSED ORDER ON I.A. NO. 4887 OF 2008 IN F.A.O. NO. 90 OF 2007 DISMISSED SD/- M.N.KRISHNAN, JUDGE 28.11.2008 // TRUE COPY // PA TO JUDGE rhs M.N. KRISHNAN, J ----------------------- F.A.O.No. 90 OF 2007 --------------------------------- Dated this the 28th day of November, 2008 JUDGMENT This appeal is preferred against the judgment of the District Judge, Pathanamthitta in A.S. No. 164/2003. The Original Suit was filed with respect to the right of way under Ext. A3 agreement. The trial court held that Ext. A3 is not proved and therefore dismissed the suit. It is against that decision the appeal was preferred. The appellate court held that “So it could not be found at this stage that the execution of Ext. A3 is proved properly”. Then on the request by the counsel for the plaintiff, the appellate court remanded the case for further consideration by permitting the plaintiff to prove execution of Ext. A3. It is against that judgment the present appeal is preferred. 2. I do not want to express anything on the merits of the case for the reason that the appellant before me filed an application before the appellate court to hear him for the reason that the counsel was laid up and he could not argue the case. Therefore the appellate court did not have an opportunity of hearing the counsel for the respondents in the appeal for disposing of the matter. F.A.O. No. 90/2007 -2- Granting an opportunity to a party is not a matter of course. But it is also governed by provisions and the court while doing so has to apply its mind and find out whether an opportunity has to be given in such cases, I leave it there. Similarly it is submitted before me that the alleged agreement is not a registered agreement. It conveys right with respect to an immovable property to be used as a pathway and the question whether it is to be compulsorily registered and if so it is not registered, what will be the value that can be attached to the document also is a fact to be considered. Therefore I feel that the appellate court itself considers these materials after hearing both sides and arrive at a decision. The learned counsel for the appellant had contended before me that the ground on which the case is remanded is not at all a sufficient ground for remanding a matter and that is also a point which the court has to consider. Therefore I set aside the judgment passed by the District Judge and direct the learned District Judge to consider A.S. 164/2003 afresh and dispose of the matter after hearing both sides, especially on the points referred to by me in the previous paragraphs of the judgment. F.A.O. No. 90/2007 -3- If the trial court records have been sent back, let it be recalled and appeal be disposed of within a period of two months and for the purpose of enabling the parties hearing before the court, I fix the hearing date on 4.1.2009. I permit the plaintiff in this case to move an application under Section 10 of the C.P.C in O.S. 356/2002 pending before the Munsiff Court, Ranni and let the Munsiff consider it on merits before proceeding with the trial of that case. M.N. KRISHNAN,JUDGE vkm