IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 18265 of 2010(O)
1. KESAVAN VISWAMBHARAN,
... Petitioner
Vs
1. NANDI GRANITES PVT.LTD., REPRESENTED BY
... Respondent
2. SUGUNAN, CHITHIRAKAILASAM KUNNU,
For Petitioner :SRI.M.R.RAJESH
For Respondent :SRI.P.R.VENKETESH
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :13/07/2010
O R D E R
THOMAS P.JOSEPH, J.
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W.P(C) No.18265 of 2010
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Dated this the 13th day of July, 2010
J U D G M E N T
Respondent No.1 is served on this Writ Petition. Respondent
No.2 appears through counsel.
2. Grievance of petitioner, appellant in A.S. No.129 of
2005 is that on 22.05.2010 counsel made an oral request for
further time for argument. But that request was rejected and the
appeal was taken up for judgment and posted on 26.05.2010. In
the meantime petitioner filed I.A. No.922 of 2010 requesting to
review the order taking up the appeal for judgment. That
application was dismissed by the learned Sub Judge by Ext.P2,
order on 26.05.2010 stating that sufficient opportunity was given
to the petitioner for argument. Following that learned Sub Judge
on the same day dismissed the appeal on merit vide Ext.P3, order.
That is under challenge in this Writ Petition. Learned counsel for
petitioner contends that there was no wilful laches on the part of
petitioner or counsel in not getting ready for argument of the case
and at any rate learned Sub Judge was not correct in dismissing
the appeal.
W.P(C) No.18265 of 2010
-: 2 :-
3. Mere physical presence of party or counsel without
preparedness to proceed with the case does not amount to
presence of party or counsel. Request for time made on
22.05.2010 for argument is not a case of presence of party or
counsel before the learned Sub Judge. That can only be taken as
absence of party or counsel in so far as the appeal is concerned in
which case learned Sub Judge could only dismiss the appeal for
default as provided in Order XLI Rule 17 of the Code of Civil
Procedure (for short, “the Code”). Explanation to the said Rule
makes it clear that in the absence of party or counsel the court is
not empowered to dismiss the appeal on merit. Hence learned
Sub Judge was not correct in dismissing the appeal on merit in
the ‘absence’ of petitioner and counsel. Though dismissal of the
appeal is on merit it can only be taken as a dismissal for default.
Then remedy available to the petitioner is to request learned
Sub Judge to re-admit the appeal under Order XLI Rule 19 of the
Code. There is no reason why petitioner should come to this
Court seeking relief under Article 227 of the Constitution of India.
He has the statutory remedy provided under the Code. Hence
without prejudice to the right of petitioner under Order XLI Rule
19 of the Code, this Writ Petition is closed.
W.P(C) No.18265 of 2010
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I direct that interim stay granted by this Court against
delivery of property in O.S.No.402 of 1999 of the court of learned
Munsiff, Attingal will continue to be in force for a further period
of three weeks from this day.
THOMAS P. JOSEPH, JUDGE.
vsv