IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 3RD AUGUST 2009 / 12TH SRAVANA 1931 FAO.No. 304 of 2008() --------------------- AGAINST THE ORDER DATED 29/10/2007 IN IA.35/07 & 36/07 IN AS.185/2004 of ADL.D.C. & MACT,THODUPUZHA .................... APPELANTS/PETITIONERS:- ------------------------------------------- 1. RENJITHAM,W/O. LATE PARAMASIVAN,AGED 51, BUILDING NO. 359, 2 PORTION, PANCHAYATH NO. IX/142 MOOLAKADA BHAGOM, OLD MUNNAR DIVISION INSEVENMALAY ESTATE, MUNNAR P.O., K.D.H. VILLAGE, DEVIKULAM TALUK. 2. KANNAN, S/O. LATE PARAMASIVAN, BUILDING NO. 559 -2 PORTION, PANCHAYAT NO. IX/142, MOOLAKADU BHAGOM, OLD MUNNAR DIVISION IN SEVENMALY ESTATE, MUNNAR P.O, K.D.H. VILLAGE, DEVIKULAM TALUK. BY ADV. SRI.SATHISH NINAN SRI.SANTHOSH MATHEW SRI.ARUN THOMAS RESPONDENT(S): --------------- TATE TEA LIMITED COMPANY, INCORPORATED IN INDIA, HAVING ITS REGISTERED OFFICE AT BISHIP LEFROY ROAD, CALCUTTA , WEST BENGAL WITH ITS REGIONAL OFFICE AT MUNNAR, K.D.H. VILLAGE, DEVIKULAM TALUK REP. BY ITS POWER OF ATTORNEY HOLDER THOMMAN T. KURUVILA, S/O. THOMMAN, ADV. SRI.JOSEPH KODIANTHARA FOR R1 SRI.MATHEWS K.UTHUPPACHAN FOR R1 SRI.TERRY V.JAMES FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 03/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. -------------------------------------------------------- FAO NO.304 OF 2008 -------------------------------------------------------- Dated 31st July 2009 Judgment RAMAN, J. This is an appeal against an order rejecting an application to restore the appeal, consequent upon the dismissal of the petition for condonation of delay. The appellants are the defendants in the suit. The suit is one for declaration of title and for perpetual injunction against the respondent from trespassing into the property. The suit was decreed as prayed for and an appeal was preferred by the appellants. On the appointed day, when the case was taken up, the learned counsel for the appellants submitted that there was no instruction and consequently, the appeal was dismissed FAO 304/08 2 as the appellants were not present when called. The appellants filed an application for restoration of the appeal and a petition to condone the delay of 208 days in filing the appeal. It was stated that they were temporarily residing in Tamil Nadu during the previous year and the letter sent by their counsel did not reach them. But the court below was not convinced by the reasons advanced by the appellants and dismissed the petition for condonation of delay. 2. Heard. It is submitted by the learned counsel for the appellants that the court below was not correct in saying that the appellants did not approach the court below with clean hands. The reasons advanced by the appellants have been misunderstood. According to him, the appellants only stated that they were temporarily away and staying in FAO 304/08 3 Tamil Nadu and during the relevant period, when notice was issued in their previous address by their counsel, they did not receive it because he was away. The learned counsel submitted “no instruction” in such circumstances. Normally, in the absence of any deliberate laches or neglect on the part of the appellants, merely because the appellants could not be present on the date on which the appeal was posted, the court should have taken a lenient view and there is no reason why the appellants should not be given an opportunity to contest the appeal on merits by restoring the appeal into file. However, it shall be only on terms. In such circumstances, we allow this appeal on condition that the appellants pay a sum of Rs.2,000/- (Rupees Two Thousand only) to the respondent or deposit the same before the court below within one month FAO 304/08 4 from today, failing which the appeal will stand dismissed. If the amount is paid or deposited as directed above, the appeal will stand restored to file and the court below will dispose of the matter in accordance with law. P.R.RAMAN, JUDGE P.BHAVADASAN, JUDGE sta FAO 304/08 5