IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 294 of 2010()
1. K.KRISHNAN, AGED 47 YEARS,
... Petitioner
Vs
1. K.CHOMU, W/O.LATE KUNHIKANNAN,
... Respondent
2. K.DAMODARAN, S/O.CHOMU,
3. AMMINI, W/O.MANGAPPA HEGDE,(DEAD),
For Respondent :SRI.T.R.RAVI
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :20/10/2010
O R D E R
THOTTATHIL B.RADHAKRISHNAN &
P. BHAVADASAN, JJ.
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C.M.Appl.1677 OF 2010
& F.A.O.No.294 OF 2010
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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.