IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 9TH NOVEMBER 2011 / 18TH KARTHIKA 1933 FAO.No. 198 of 2011() --------------------- AGAINST THE ORDER DATED 20/03/2009 IN IA.1041/2007 IN AS.31/2002 of SUB COURT,KOTTARAKKARA OS.46/1995 of MUNSIFF COURT, KOTTARAKKARA .................... APPELLANTS/PETITIONERS & APPELLANTS/DEFENDANTS: ------------------------------ 1. KAMALAMMA,AGED 63 YEARS,PUTHENVEETTIL VEEDU,(VILAYIL VEEDU),KARIKKAMITTATHU MURI, VETTIKKAVALA VILLAGE,KOTTARAKKARA TALUK. 2. DASAPPAN PILLAI THULASEEDHARAN PILLAI, AGED 45 YEARS,PUTHENVEETTIL VEEDU,(VILAYIL VEEDU) KARIKKAMITTATHU MURI,VETTIKKAVALA VILLAGE, KOTTARAKKARA TALUK. 3. DASAPPAN PILLAI BALACHANDRAN,AGED 43 YEARS,PUTHENVEETTIL VEEDU,(VILAYIL VEEDU) KARIKKAMITTATHU MURI,VETTIKKAVALA VILLAGE, KOTTARAKKARA TALUK. 4. DASAPPAN PILLAI SIVANKUTTY,AGED 41 YEARS PUTHENVEETTIL VEEDU,(VILAYIL VEEDU) KARIKKAMITTATHU MURI,VETTIKKAVALA VILLAGE, KOTTARAKKARA TALUK. 5. KAMALAMMA USHAKUMARY,AGED 35 YEARS, PUTHENVEETTIL VEEDU,(VILAYIL VEEDU) KARIKKAMITTATHU MURI,VETTIKKAVALA VILLAGE, KOTTARAKKARA TALUK. 6. DASAPPAN PILLAI RAJENDRAN,AGED 32 YEARS, PUTHENVEETTIL VEEDU,(VILAYIL VEEDU) KARIKKAMITTATHU MURI,VETTIKKAVALA VILLAGE, KOTTARAKKARA TALUK. 7. DASAPPAN PILLAI ANILKUMAR,AGED 30 YEARS, PUTHENVEETTIL VEEDU,(VILAYIL VEEDU) KARIKKAMITTATHU MURI,VETTIKKAVALA VILLAGE, KOTTARAKKARA TALUK. BY ADVS. SRI.K.S.HARIHARAPUTHRAN & SRI.GEORGE MATHEW :2: FAO.No. 198 of 2011 RESPONDENT(S): --------------- 1. SANKARA PILLAI CHELLAPPAN PILLAI, NEELAM VILAYIL PUTHEN VEEDU,KARIKKAMUTTOM MURI, VETTIKKAVALA VILLAGE,KOTTARAKARA TALUK. (DIED) 2. KUTTY AMMA,AGED 82 YEARS, NEELAM VILAYIL PUTHEN VEEDU,KARIKKAMUTTOM MURI, VETTIKKAVALA VILLAGE,KOTTARAKARA TALUK. (DIED) 3. BHARATHI AMMA, NEELAM VILAYIL PUTHEN VEEDU,KARIKKAMUTTOM MURI, VETTIKKAVALA VILLAGE,KOTTARAKARA TALUK, PIN 691 506. 4. SASIDHARAN PILLAI, NEELAM VILAYIL PUTHEN VEEDU,KARIKKAMUTTOM MURI, VETTIKKAVALA VILLAGE,KOTTARAKARA TALUK, PIN 691 506. 5. PADMAVALLY AMMA, NEELAM VILAYIL PUTHEN VEEDU,KARIKKAMUTTOM MURI, VETTIKKAVALA VILLAGE,KOTTARAKARA TALUK, PIN 691 506. 6. LEELA,NEELAM VILAYIL PUTHEN VEEDU, KARIKKAMUTTOM MURI,VETTIKKAVALA VILLAGE, KOTTARAKARA TALUK,PIN 691 506. 7. INDIRA,NEELAM VILAYIL PUTHEN VEEDU, KARIKKAMUTTOM MURI,VETTIKKAVALA VILLAGE, KOTTARAKARA TALUK,PIN 691 506. 8. USHA,NEELAM VILAYIL PUTHEN VEEDU, KARIKKAMUTTOM MURI,VETTIKKAVALA VILLAGE, KOTTARAKARA TALUK,PIN 691 506. 9. ANIL KUMAR,NEELAM VILAYIL PUTHEN VEEDU, KARIKKAMUTTOM MURI,VETTIKKAVALA VILLAGE, KOTTARAKARA TALUK,PIN 691 506. R3 TO R9 BY SRI.C.P.PEETHAMBARAN THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 09/11/ 2011. THE COURT ON 09/11/2011 PASSED THE FOLLOWING: P.BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - F.A.O.No. 198 of 2011 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of November, 2011 J U D G M E N T Agreived by the order dated 20.03.2009 in I.A.1041 of 2007 in A.S.No.31 of 2002, the petitioners before the court below have come up in appeal. 2. The petitioners before the court below were the defendants in O.S.No.46 of 1995, which was a suit for redemption of a mortgage. The suit was decreed. Defendants 1, 5, 6 and 7 had filed a written statement. When the decree went against them, they filed an appeal before the lower appellate court. 3. The 1st respondent died during the pendency of the appeal and a memo was filed by the counsel appearing for the 1st respondent pointing out the date of death of the 1st respondent as 04.05.2005. Two I.As were filed by the petitioners herein, namely, I.A.1041 of 2007 to implead the legal heirs of the deceased 1st respondent and I.A.1042 of 2007 to set aside the abatement and also to condone the :2: F.A.O.No. 198 of 2011 delay in filing the petition to implead the legal heirs. The delay condonation petition was dismissed and consequently the other petition was also dismissed. Following that, the appeal was also dismissed. 4. It is pointed out that the petitioners had filed a second appeal before this Court. But they were informed that they had to challenge the orders in the I.A. Therefore they filed the present appeal. 5. It was fairly conceded by the learned counsel for the appellants that the 1st respondent was a neighbour of the peitioners and there has been some laches on the part of the appellants in not impleading the legal heirs within the stipulated time. The learned counsel pointed out that the appellants would not have deliberately delayed the filing of the petition, especially when they had suffered a decree at the hands of the trial court. It is seen from the memorandum of appeal that substantial contentions are raised in the suit. At any rate, they are entitled to the value :3: F.A.O.No. 198 of 2011 of improvements which has also not been considered by the trial court. 6. Though a neighbour, the appellants herein may not have been aware of the necessity of briging the legal heirs of the deceased 1st respondent on the party array. When they were made aware of the same by their counsel, they had taken necessary steps. 7. The appeal was of the year 2002 and it was dismissed on technical ground in March, 2009. One must remember that, as far as possible, the court should be eager to adjudicate the rights of the parties, rather than to cling on technicalities to avoid taking a decision on merits. In all fairness, the petitions filed before the court below ought to have been allowed and the court should have decided the appeal on merits. That would not cause any injury to either of the parties. The lower appellate court ought to have realised that the said court's decision is final as regards the finding on facts. :4: F.A.O.No. 198 of 2011 8. It is felt that the impugned order needs to be set aside and an opportunity be given to the appellants herein to have the appeal heard on merits. In the result, this appeal is allowed, the impugned orders are set aside and I.A.Nos.1041 of 2007 and 1042 of 2007 are allowed and the appeal is restored to file to dispose of it on merits. Necessary amendments will be carried out before the lower appellate court. Parties shall appear before the lower appellate court on 02.12.2011. The lower appellate court may make every endeavour to dispose of the appeal, as expeditiously as possible, at any rate, within a period of three months from the date of appearance of the parties. Send a copy of this judgment to the lower appellate court. P.BHAVADASAN, JUDGE kkj