IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 23RD FEBRUARY 2010 / 4TH PHALGUNA 1931 FAO.No. 317 of 2009() --------------------- AGAINST THE ORDER DATED 10/09/2009 IN IA 1249 /2008 IN AS.41/2004 of SUB COURT,ALAPPUZHA .................... APPELLANT/PETITIONER/ APPELLANT/ PLAINTIFF: ------------------------------------------------------------ G. MADHUSOODHANAN, S/O. T.GOVINDA PILLAI DEVIKAYIL, PERUNNERMANGALAM MURI, MARARIKULAM VILLAGE, CHERTHALA TALUK. BY ADV. SRI.K.S.HARIHARAPUTHRAN SRI.M.D.SASIKUMARAN SRI.GEORGE MATHEW RESPONDENT(S): COUNTER PETITIONER/ RESPONDENT/ DEFENDANT ------------------------------------------------------------------------------ KARUNAKARAN NAIR, S/O. PARAMESWARA PANICKER, ATTAKUZHI NADUVIL, KANICHUKULAGARA.P.O, MARARIKULAM VADAKKU VILLAGE. ADV. SRI.P.N.RAMAKRISHNAN NAIR FOR R SRI.P.VISWANATHAN FOR R THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 23/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = F.A.O. NO. 317 OF 2009 = = = = = = = = = = = = = = = Dated this the 23rd day of February, 2010. J U D G M E N T This appeal is preferred against the order of the Sub Judge, Alappuzha whereby the learned Judge dismissed the application to condone the delay to rehear the matter and consequently dismissed the rehearing application as well. It is seen on a perusal of the order that even for rehearing under Order 41 Rule 19 CPC the matter has been very hotly contested. If really the appeal was argued it would have been over and the parties should not knock at the doors of this Court for ventilating their grievances. What shall be the legal methodology to be adopted will depend upon the facts and circumstances of each case but to say it generally the principles of natural justice requires that no man can be condemned without hearing. F.A.O. 317 OF 2009 -:2:- 2. Our Hon'ble Supreme Court as early as in 1987 in the decision reported in Collector, Land Acquisition, Anantnag v. Katiji (AIR 1987 SC 1353) had laid down the broad propositions regarding the condonation of delay etc. The Court held that, “When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non deliberate delay.” The Court also cautioned that, “It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.” In the decision reported in Sreedhara Kurup v. Mickel (1968 KLT 599) this Court had held that the broad principles of natural justice has to be taken into F.A.O. 317 OF 2009 -:3:- consideration and further held that if action has been initiated vigilantly and some evidence is let in then an opportunity can be given by directing to pay some costs to the other party. These are the methodologies and legal principles stated. One cannot be too technical in these types of matters and having seen the elaborate order written by the Sub Judge it appears he had proceeded in a technical fashion. It is true that the appeal was filed in the year 2004 and it came up for hearing on 13.8.07. As the appellant and counsel were absent on that day the Court posted the matter to 14.8.07 and on that day dismissed it for default. The application for rehearing coupled with a petition to condone the delay of 8 months and 7 days is filed before the Court only on 21.5.2008. The grounds alleged are that the applicant was laid up with chickengunia which spread out in 2007-2008 disastrously in some of the districts in Kerala and with the complaints of non recovery from the said ailment. Exts.A1 and A2 are the two documents and PWs.1 and 2 are F.A.O. 317 OF 2009 -:4:- the two doctors. Though it is stated that he was suffering from chickungunia the Doctor would say it is chicken-pox. Similarly the second Doctor would say that he was treated him for rheumatic arthritis. By reading the newspaper and other magazines it is clear that even when one is laid up with chickengunia it is a disease which affects the joints very badly and that pain and discomfort persists for a considerable length of time. It is also to be understood rheumatic arthritis is also another sort of ailment which affects joints and caused pain that is why it is often said “rheumatism licks the joints and bites the heart.” But one thing is definite from the evidence of two doctors that this person had been undergoing some treatment. It may be chickungunia, or chicken-pox or rheumatic arthritis. The petitioner should have been more specific, clear and cogent. 3. It is also brought out in evidence that he is a person who is a member of committee and he had attended the committee meetings on so many days during the alleged F.A.O. 317 OF 2009 -:5:- period of ailment. The learned counsel also would submit before me that it is in his neighborhood and that is why he has gone. Whatever it may be, the things which are available before the Court would show that this man had some ailment coupled with some negligence and when there is no gross negligence or grave mis-conduct an opportunity can be given. So I feel the substantial justice requires an opportunity be given at the same time for the laches on his part he has to be penalized. Or in other words a chance can be given by paying costs to the other side. Therefore I am inclined to allow the appeal and set aside the order of the appellate court and condone the delay as well as allow the application for restoration on condition that the appellant pays a sum of Rs.3,000/- as costs to the counsel appearing for the respondents before the High Court. The costs would be paid on or before 15.3.2010 and the receipt be produced before this Court. If the receipt is produced the Registry is directed to communicate this order to the appellate court for F.A.O. 317 OF 2009 -:6:- restoring the appeal and hear and dispose it of on merits. Records need be send only after 15.3.2010 and if there is failure to pay the costs on or before that date then the benefit given is forfeited and this appeal will stand dismissed. The FAO is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/- The appellant has paid an amount of Rs.3,000/-(Rupees three thousand only) towards cost to the counsel for the respondent within the stipulated time in compliance of the direction contained in the judgment dated 23.2.2010 in FAO 317/2009 vide memo c.f. 1610/10 dated 10.3.2010. Sd/- Registrar (Judicial)