IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 22ND MAY 2009 / 1ST JYAISHTA 1931 FAO.No. 74 of 2009() -------------------- AS.43/2007 of SUB COURT, QUILANDY .................... APPELLANTS ------------------------------ 1. P.AHAMMED, S/O.KADIRI, PUTHIYAMBARAMMAL, POONOOR DESOM, UNNIKULAM VILLAGE, KOYILANDY TALUK. 2. KUNNUMMAL NAFEESA ALIAS NAABISA, W/O.P.AHAMMED, DO. DO. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S): --------------------------------- 1. ATHAYAKUNNINMAL MARIYAKUTTY, D/O.MOINKUTTY, POONOOR DESOM, UNNIKULAM VILLAGE, KOYILANDY TALUK. 2. KANHIRAMANNIL SUIBEENA ALIAS JOUFEENA, D/O.AHAMMED, DO. DO. 3. DO. DO. RAJITHA, DO. DO. 4. KANHIRAMANNIL SAFIYA, DO.KADIRI, DO. DO. ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE FOR R1-3 SRI.K.JAYAKUMAR FOR R1-3 SRI.P.B.KRISHNAN FOR R1-3 THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 22/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = F.A.O.No.74 of 2009 = = = = = = = = = = = = = = Dated this the 22 nd day of May, 2009 JUDGMENT Defendants 1 and 2 in O.S.No.9 of 2002 on the file of the Munsiff's Court, Quilandy are the appellants in this appeal. The said suit filed by respondents 1 to 3 herein was one for a declaration and injunction in respect of the plaint schedule properties . As per judgment and decree dated 19.1.2007, the trial court decreed the suit. Aggrieved by the decree, the appellants herein preferred an appeal before the Sub Court, Koyilandy as A.S.No.43 of 2007 . After completion of service of summons to the respondents in the appeal, the appeal was posted for hearing on 18.8.2008. On that day, Advocate Sri.K.P.Damodaran Nambiar, a senior lawyer from Kozhikode who was appearing for the appellants was unable to appear before the Subordinate Judge, Koyilandi as he was engaged in another case at Kozhikode. An application was filed by the applicants before the Subordinate Judge, Koyilandi seeking an adjournment of the hearing. The case was adjourned to F.A.O.No.74 of 2009 2 22.8.2008. On that day since the 1st appellant was allegedly laid up and the second appellant who is his wife was allegedly attending on the the 1st appellant, they were unable to go to Kozhikode and consequently the appellants and their lawyer from Kozhikode were unable to appear before the Subordinate Judge at Koyilandi,. The appeal was therefore dismissed for default under Order 41 Rule 17 C.P.C. Even though an application for re-admission of the appeal dismissed for default was filed as I.A.No.1360 of 2008 by invoking Rule 19 of Order 41 C.P.C, the lower appellate court, as per the impugned order dated 22.11.08, dismissed the said application holding, inter alia, that there was no medical evidence produced to show that the 1st appellant was not well and also holding that the appellants were guilty of gross negligence in the conduct of the case. Hence this appeal. 2. Eventhough senior Advocate Sri.S.V.Balakrishna Iyer, appearing on behalf of respondents 1 to 3/plaintiffs, submitted that there is absolutely no bona fide either in the appeal or in the alleged reason put forward in support of I.A.No.1360 of 2008, being a first appeal in which the appellants had a right to be F.A.O.No.74 of 2009 3 heard on facts after a re-appraisal of the oral and documentary evidence in the case, I am of the view that the appellants should be given an opportunity to have the appeal disposed of on merits. The view taken in Raghavan Pillai v. Thomas (2009(2) KLT (SN)53 is also along the same lines as above. Accordingly, I.A.No.1360 of 2008 filed by the appellants before the court below for re-admission of the appeal which was dismissed for default shall stand allowed and A.S.No.43 of 2004 shall stand restored to file. Being an appeal of the year 2007, the learned Subordinate Judge shall give some priority to the appeal which shall be disposed of as expeditiously as possible. The parties shall appear before the lower appellate court without any further notice on 15.6.2009. Dated this the 22 nd day of May , 2009. V. RAMKUMAR, JUDGE sj