IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 23RD AUGUST 2011 / 1ST BHADRA 1933 FAO.No. 132 of 2011() --------------------- AGAINST THE ORDER DATED 11/06/2010 IN IA.1684/2009 IN AS.35/2002 of SUB COURT, PAYYANNUR .................... APPELLANTS/PETITIONERS ------------------------------------------ 1. K.V.JANAKI, AGED 55 YEARS, W/O.LATE K.RAGHAVAN. 2. K.V.JALAJA, AGED 36 YEARS, D/O.LATE RAGHAVAN. 3. K.V.MANOJ, AGED 33 YEARS, S/O.LATE RAGHAVAN. 4. K.V.BIJUNA, AGED 29 YEARS, D/O.LATE RAGHAVAN. ALL RESIDING AT KADANNAPPALLY AMSOM CHERUVICHERRI DESOM, KANNUR TALUK, KANNUR DISTRICT. BY ADV. SRI.P.R.SREEJITH SRI.M.PROMODH KUMAR SRI.P.P.SURENDRAN RESPONDENT/RESPONDENT: ----------------------------------------- KAIPRAVAN NADUVILAE VEETIL KUNHIRAMAN, S/O.RAMAN NAMBIAR, KULIYAPARAM, KADANNAPPALLY AMSOM CHERUVICHERRI DESOM, KANNUR TALUK, KANNUR DISTRICT-670 001. ADV. SRI.M.V.AMARESAN FOR R1 SRI.V.N.RAMESAN NAMBISAN FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 23/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------- F.A.O. No.132 of 2011 ------------------------------------- Dated this the 23rd day of August 2011 Judgment This appeal is directed against the order dated 11.06.2010 on IA No.1684/09 in AS No.35/02. 2. The predecessor-in-interest of the appellants was the defendant in OS No.97/95 before the Munsiff's Court, Payyannur. The said suit was one for fixation of boundaries and for other reliefs. The predecessor-in- interest of the appellants had instituted OS No.346/94 seeking injunction against the trespass and demolition of the boundary wall. The suit filed by the respondent was decreed as per Judgment dated 31.10.2001 against which the defendant in the suit filed AS No.35/02. The appellants were brought on the party array subsequent to the death of late K.Raghavan. The appeal was posted for hearing on 24.09.2009. According to the appellants, unfortunately, their counsel could not be present on that day and the FAO 132/11 2 appeal happened to be dismissed for default. They also point out that the reason for the absence was that the date of posting was wrongly noted by the counsel. On coming to know about the dismissal of the appeal on 24.09.2009, an application for restoration was filed as 1684/09 pointing out the circumstances under which there happened to be no representation when the appeal was called for hearing. The application was opposed by the respondent who pointed out that the application is not maintainable since it was filed beyond the stipulated period of limitation and there was no petition to condone the delay. On 07.06.2010, the petition was posted for hearing. The matter was posted for orders to 11.06.2010 and on the said day, the impugned order was passed. 3. The ground taken by the appellants is that after the posting on 07.06.2010 and before disposing of the case on 11.06.2010, they had filed two interlocutory applications on 08.06.2010, as IA Nos.816 and 817 of 2010 for condoning the delay of 7 days as well as to re-open the FAO 132/11 3 case respectively. Those applications were not considered by the court below. According to the learned counsel, though the application for restoration as such was not accompanied by a delay condonation petition, a petition for condonation of delay was also filed before orders were passed on IA No.1684/10. 4. Even though this appeal was posted for hearing on several occasions and the name of the counsel for the respondent was shown, none appeared on the posting dates. 5. In view of the fact that before passing orders on IA No.1684/10 in AS No.35/02, necessary application was filed for condonation of delay, the court ought to have considered that application before passing orders on IA No.1684/10. Normally this court should direct the court below to consider the application. But, that would prolong the hearing of the appeal. The appeal is of the year 2002. More than 9 years have already elapsed. Therefore, it is thought fit that the application for restoration be allowed FAO 132/11 4 and the appeal be directed to be taken to file and heard and disposed of in accordance with law and in the light of what is stated above. In the result, this appeal is allowed. The impugned order is set aside and the court below is directed to take the appeal back to file and dispose it of on merits in the light of what is stated above, as expeditiously as possible. The parties shall appear before the lower appellate court on 30.09.2011. Forward a copy of this judgment to the court below immediately. P.Bhavadasan, Judge sta FAO 132/11 5