IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 18TH JULY 2008 / 27TH ASHADHA 1930 FAO.No. 184 of 2007() ----------------------------- AGAINST THE ORDER DATED 31/08/2006 IN IA.376/06 IN AS.134/1996 of ADDL.SUB COURT,KOTTAYAM .................... APPELLANT/PETITIONER/PLAINTIFF : ------------------------------------------------------ N.S.S. KARAYOGAM NO.315, KANJIRAMATTOM, ANICKADU, REPRESENTED BY PRESIDENT, N.S.S. KARAYOGAM, ANICKADU. BY ADV. SRI.M.NARENDRA KUMAR SRI.R.SUDHIR RESPONDENTS/COUNTER PETITIONER/DEFENDANT/ADDL.RESPONDENTS : -------------------------------------------------------------------------------------------------------------- 1. VARKEY LUCKA, AGED 91 YEARS, S/O. VARKEY, CHRISTIAN, RESIDING AT MANIYAMAGATTU, PARAYIL, ANICKADU, VADAKKUMBHAGOM KARA, CHENGALAM EAST VILLAGE (DIED). 2. JOSEPH LUKA, AGED 49 YEARS, S/O. VARKEY LUCKA, RESIDING AT MANIYAMGATTU PARAYIL ANICKADU VADAKKUM BHAGOM KARA, CHENGALAM EAST VILLAGE. 3. MAMMY LUKA, D/O. VARKEY LUCKA, -DO- -DO-. 4. MARIAM LUKA, -DO- -DO-. 5. MONICHA LUKA, -DO- -DO-. 6. ALEY LUKA OF -DO- -DO-. 7. PENNAMMA LUKA OF -DO- -DO-. 8. THEYYAMMA LUKA OF -DO--DO-. (REMOVED) FAO.No. 184 of 2007 BY ADV. SMT.ELIZABETH MATHAI IDICULLA - R2 & 3 SRI.MOHAN IDICULLA ABRAHAM - R2 & 3 SRI.MARTIN D.ALUMKARA - R2 & 3 SRI.RACHEL JOSEPH - R2 & 3 SMT.PUSHPY B.MURICKEN - R2 & 3 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 18/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = F.A.O. NO. 184 OF 2007 = = = = = = = = = = = = = = = Dated this the 18th day of July, 2008. J U D G M E N T This appeal is preferred against the order of the Addl. Sub Judge, Kottayam in I.A.376/06 in A.S.134/96. The first defendant in the suit namely the N.S.S. Karayogam had preferred the appeal against the judgment of the Addl. Munsiff, Kottayam in O.S.612/90. The suit is one for recovery of possession of the property, for a declaration of title and also for an injunction. The trial court granted a decree in favour of the plaintiff. It appears that during the pendency of the appeal the plaintiff died and his legal representatives have been impleaded as additional respondents 2 to 8. A perusal of the order passed by the learned Sub Judge would show that when the appeal was posted for hearing on 25.1.06 as there was no representation for the appellant, the appeal has been dismissed for default. The reason alleged for the non-appearance was the engagement of the counsel before the CBI Court, Ernakulam F.A.O. NO. 184 OF 2007 -:2:- on that particular date. The Sub Judge found that the appellant had taken almost six years to complete service and being an appeal of 1996 had came up for hearing only in 2006 and on that day also there was no representation and therefore dismissed the appeal. 2. It has to be stated that as far as possible matters have to be heard and disposed of on merits. In restoration of appeals and setting aside of exparte orders it has been held by this Court unless there is gross negligence or grave misconduct the broad principles of natural justice demands the Court to extend a fair chance to the party to contest the case on merits. In the decision reported in Sreedhara Kurup v. Mickel (1968 KLT 599) this Court held as follows: “It is largely a matter of wise discretion to be exercised by the Court bearing in mind the wholesome principle that the right of a party to be heard should be negatived only if there is gross negligence or gross carelessness and that if some steps have been taken and application for restoration has been made with some F.A.O. NO. 184 OF 2007 -:3:- diligence and some evidence adduced making out a sufficient cause for absence, restoration should be ordered, minor misconduct or laches being corrected by the common curative of costs. The brooding spirit of natural justice must be the background while ascertaining whether there is sufficient cause.” 3. Here, in this case, the counsel was unable to attend the Court on account of the fact that he was engaged in a Court at Ernakulam. I am conscious of the fact there is a provision under Order 17 of the CPC which specifically states that the engagement of a counsel in another Court shall not be a ground for adjournment. But, when the question of restoration comes and when a lawyer is engaged in a Court from where he cannot reach, the poor client shall not suffer for the same. That is why the law has been laid down so in the decision referred to above. Therefore, the order under challenge is set aside and the application I.A.376/06 is allowed and the appeal is restored to file. I hope and wish that the appellant does not take further time F.A.O. NO. 184 OF 2007 -:4:- to get ready with the matter and after appearance let both sides get ready, get a date fixed by the Court and then the Court shall hear and dispose of the matter in accordance with law. Parties are directed to appear before the Court on 26.8.08 and in case respondents in the appeal does not appear on that day, let notice be given to the counsel appearing there and the matter be proceeded with. M.N. KRISHNAN, JUDGE. ul/-