IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 184 of 2007()
1. N.S.S. KARAYOGAM NO.315,
... Petitioner
Vs
1. VARKEY LUCKA, AGED 91 YEARS,
... Respondent
2. JOSEPH LUKA, AGED 49 YEARS,
3. MAMMY LUKA, D/O. VARKEY LUCKA,
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-.
For Petitioner :SRI.M.NARENDRA KUMAR
For Respondent :SMT.ELIZABETH MATHAI IDICULLA
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :18/07/2008
O R D E R
M.N. KRISHNAN, J.
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F.A.O. NO. 184 OF 2007
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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
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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
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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
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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.
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