IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 22ND JUNE 2011 / 1ST ASHADHA 1933 FAO.No. 114 of 2011 AGAINST THE ORDER DATED 11.1.2011 PASSED BY THE DISTRICT COURT, THRISSUR IN I.A.NO.3770/2010 IN AS.405/2008 APPELLANTS/PETITIONERS/PLAINTIFFS ----------------------------------------------------- 1. METHARKUTTI @ ABDUL KHADER, S/O.KOTTEKATTIL PEERUMUHAMMED,POTTIMADA, VANIYAMPARA DESOM,PEECHI VILLAGE, THRISSUR DISTRICT 2. SAINABA,W/O.KOTTEKATTIL METHARKUTTI @ ABDUL KHADER,POTTIMADA,VANIYAMPARA DESOM, PEECHI VILLAGE,THRISSUR DISTRICT. BY ADV. SRI.T.M.ABDUL LATIFF RESPONDENTS: RESPONDENTS/DEFENDANTS ------------------------------------- 1. SAIDHU MEERAN,S/O.KOTTEKATTIL PEERUMUHAMMED, POTTIMADA,VANIYAMPARA DESOM, PEECHI VILLAGE,THRISSUR DISTRICT 680 653. 2. JABBAR,S/O.KOTTEKATTIL PEERUMUHAMMED, POTTIMADA,VANIYAMPARA DESOM, PEECHI VILLAGE, THRISSUR DISTRICT 680 653. 3. ISMAIL,S/O.CHELLAPARAVUTHAR, AYAKODE AMSOM,KONNAMCHERI DESOM, ALATHUR TALUK- 678 541. R1 AND 42 BY ADV. SRI.P.R.VENKETESH THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 22/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ F.A.O. NO. 114 OF 2011 ------------------------------------------------------ Dated this the 22nd day of June, 2011 JUDGMENT The appellants filed A.S.No.405 of 2008, on the file of the Court of the District Judge, Thrissur, challenging the judgment and decree of the trial court. On 14.10.2010, when the appeal was taken up for hearing, the appellants sought for adjournment. The Appellate Court refused adjournment and dismissed the appeal for default. The appellants filed I.A.No.3770 of 2010 for restoration of the appeal. That application was dismissed by the order dated 11.1.2011, which is under challenge in this appeal. 2. The court below dismissed the application on the ground that the appeal was posted on several occasions and finally it was posted to 14.10.2010 for hearing. On that day, adjournment was sought for on behalf of the appellants/petitioners and that application was dismissed. The court below held that in spite of granting sufficient time, the appellants before the court below were not ready to proceed with the appeal. 3. Heard the learned counsel for the appellants and the F.A.O. NO.114 OF 2011 :: 2 :: learned counsel for the respondents. The court below cannot be blamed for dismissing the appeal for default, since the appellants were not ready to argue the case. However, by dismissing the application for restoration, the appellants herein were denied of an opportunity to have the appeal heard on merits. I am of the view that an opportunity can be granted to the appellants to prosecute the appeal on the merits on condition of payment of costs. The learned counsel for the appellants submitted that the appellants would be ready to argue the appeal on any date on which it is posted and that the appellants would not request for any adjournment on that day. 4. In the facts and circumstances of the case, the order dated 11.1.2011 in I.A.No.3770 of 2010 passed by the court below is set aside on condition that the appellants (petitioners) shall pay a sum of Rupees One thousand as costs to the respondents within a period of one month. The Memorandum of First Appeal is allowed as above. (K.T.SANKARAN) Judge ahz/ Certified that the appellants have paid `1,000/- (Rupees One thousand only) as cost to the counsel for the respondents F.A.O. NO.114 OF 2011 :: 3 :: within the time limit in compliance of the direction contained in the judgment dated 22/06/2011 in F.A.O.No.114/2011, vide memo c.f.2779/2011 dated 05/07/2011. Sd/- Registrar (Judicial)