IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 20TH OCTOBER 2010 / 28TH ASWINA 1932 FAO.No. 294 of 2010() ------------------------------ AS.5/2005 of SUB COURT, HOSDRUG .................... APPELLANT/APPLICANT/PETITIONER. ------------------------------------------------------- K. KRISHNAN, AGED 47 YEARS, S/O.HUNHIRAMAN, RESIDENCE AT KOLAVAYAL, AJANOOR VILLAGE, HOSDURG TALUK, P.O.KOLAVAYAL, KASARAGOD DISTRICT. BY ADV. SRI.T.K.VIPINDAS RESPONDENTS/RESPONDENT/RESPONDENT ----------------------------------------------------------------- 1. K.CHOMU, W/O.LATE KUNHIKANNAN, RESIDING AT KAVVAI, MOLOTHUMKUZHI, HOSDURG VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT, KAVVAI P.O., 670 339. 2. K.DAMODARAN, S/O.CHOMU, EMPLOYEE K.T.C., RESIDING AT KAVVAI, MOLOTHUMKUZHI, HOSDURG VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT, KAVVAI P.O.,670 339. 3. AMMINI, W/O.MANGAPPA HEGDE, (DEAD), RESIDING AT KAVVAI, MOLOTHUMKUZHI, HOSDURG VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT, P.O. KAVVAI, 670 339. 4. SUPPLEMENTAL RESPONDENT. H. GOPALA, S/O.AMMINI, RESIDING AT MOLOTHUM KUZHI, KAVVAI, HOSDURG VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT, KAVVAI P.O., PIN-670 339. R1 & R2 BY ADV. SRI.T.R.RAVI. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 20/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. THOTTATHIL B.RADHAKRISHNAN & P. BHAVADASAN, JJ. ------------------------------------------- C.M.Appl.1677 OF 2010 & F.A.O.No.294 OF 2010 ------------------------------------------- Dated this the 20th day of October, 2010 JUDGMENT Thottathil B.Radhakrishnan, J. This appeal with an application to condone delay of 1216 days is filed against an order, by which, the lower appellate court has rejected an application filed within time to restore an appeal dismissed for default. The suit related to certain claim for immovable property. The plaintiff sought a decree for perpetual injunction. That was dismissed. He, therefore, filed an appeal. The lower appellate court posted the appeal for final hearing on a particular day and on account of absence of the appellant and his counsel, the appeal was dismissed for default. The appellant filed an application for restoration of that appeal within the time prescribed by law for such an application. His plea was that he was housed in the Central Prison in relation to a criminal case, stated to be a maintenance claim under Section 125 Cr.P.C. He produced an OP ticket before the lower appellate court in FAO.294/10 2 support of his contention. The court below noticed that the said OP ticket shows that on that particular day of issuance of that OP ticket, he was in the Central Prison. However, the court below, in our view and unfortunately, proceeded with the finding that the OP ticket was only in relation to examination of Urine and therefore, went to the extent of disbelieving the version. It appears that the court below expected the appellant to produce further materials regarding his housing in the prison. On the totality of the facts and circumstances, when the appellant stated before court that he was housed in the Central Prison and that he had applied for restoration of the appeal within the time prescribed by law, the court below should have been lenient enough to grant him an opportunity to prosecute the appeal arising from the suit filed by him in relation to an immovable property. However, the delay in filing this FAO is attributed to the misplacement of the case file. The plea is that the appellant had another case which was allowed by this Court and the file in FAO.294/10 3 relation to the case in hand has been apparently misplaced along with the file of that case. We are impressed that the appellant has shown sufficient cause for condonation of delay in instituting this appeal. In the result, the C.M. Application and the appeal are allowed and the order in I.A.1193/06 in A.S.No.5/05 is set aside and the said A.S. is restored to file of the court of the Sub Judge, Hosdurg with a direction that the said court will take up the matter and decide it on merits, however, on condition that the appellant pays the respondents an amount of Rs.2,500/- as costs payable to the counsel appearing for the respondents before this Court within four weeks from now. The parties are directed to mark their appearance before the court below on 14.12.2010 and the memo regarding the payment of costs shall be filed before the court below. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- P.BHAVADASAN, Judge. kkb.21/10.