IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP(C).No. 244 of 2010(O)
1. M.K.KUMARAN, AGED 73 YEARS,
... Petitioner
Vs
1. RUBY, W/O.P.M.MUHAMMED NAZER,
... Respondent
2. ABDUL RAZAK, S/O.ANEEFA RAWTHER,
For Petitioner :SRI.V.G.ARUN
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :08/10/2010
O R D E R
THOMAS P JOSEPH, J.
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O.P(C).No.244 of 2010
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Dated this 08th day of October, 2010
JUDGMENT
Petitioner is the appellant in A.S.No.243 of 2006 of the
court of learned District Judge, Kottayam. That appeal is
directed against the judgment and decree in O.S.No.389 of 1997
of the court of learned Sub Judge, Kottayam whereby a decree for
recovery of possession of property was granted against
appellant. Respondents preferred a cross appeal in A.S.No.243
of 2006. Petitioner had filed O.S.No.571 of 1994 for a decree for
prohibitory injunction against respondents forcibly evicting him
and alleging that during the pendancy of suit respondents
interfered with enjoyment of the suit property and committed
mischief, petitioner got the plaint in O.S.No.571 of 1994
amended to incorporate a prayer for recovery of damages also. I
am told that O.S.No.571 of 1994 was decreed in part allowing
petitioner to realise damages to the tune of Rs.96,770/-.
Respondents have challenged that appeal in this court in
R.F.A.No.327 of 2006. According to learned counsel since the
appeals arises from a common judgment and decree the same are
to be heard and disposed of by the same court and petitioner is
O.P(C).No.244 of 2010
: 2 :
taking steps to withdraw A.S.No.243 of 2006 to this court to be
heard along with R.F.A.No.327 of 2006. It is in the meantime
that A.S.No.243 of 2006 and the cross appeal were dismissed for
default on 18-08-2009. Petitioner has filed Ext.P2, I.A.No.1609 of
2009 for restoration of the appeal invoking Order 41, Rule XIX of
the Code of Civil Procedure. I am told that respondents have
filed application to restore the cross appeal which also was
dismissed for default. These applications are pending
consideration. Difficulty of petitioner is that unless the
applications are disposed of, petitioner cannot move this court for
transfer of A.S.No.243 of 2006 to be heard along with
R.F.A.No.327 of 2006. Hence this petition for a direction to the
learned Sub Judge to dispose of Ext.P2, application for
restoration of the appeal. Having regard to the facts and
circumstances of the case it is only appropriate that Ext.P2,
application for restoration of the appeal as well as the application
for restoration of the cross appeal are disposed of by the learned
Sub Judge as early as possible so that it will be open to the
petitioner to take appropriate steps to call for A.S.No.243 of 2006
also to this court to be heard along with R.F.A.No.327 of 2006.
O.P(C).No.244 of 2010
: 3 :
Resultantly this petition is disposed of directing learned
Sub Judge, Kottayam to dispose of Ext.P2 (I.A.No.1609 of 2009)
for restoration of the appeal and also the application for
restoration of the cross appeal in A.S.No.243 of 2006 as early as
possible.
(THOMAS P JOSEPH, JUDGE)
Sbna/-