IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 184 of 2005()
1. MANOJ, S/O.ABOOBACKER,
... Petitioner
Vs
1. THRISSUR MUNICIPALITY,
... Respondent
2. SECRETARY, THRISSUR MUNICIPALITY,
3. STATE BANK OF INDIA,
4. MAIMOONA, W/O.LATE ABOOBACKER,
5. SUJITHA, D/O.LATE ABOOBACKER,
For Petitioner :SRI.M.S.KALESH
For Respondent :SRI.K.B.MOHANDAS
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :19/08/2008
O R D E R
P.R.RAMAN & T.R.RAMACHANDRAN NAIR, JJ.
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F.A.O. No.184 of 2005
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Dated this the 19th day of August, 2008
J U D G M E N T
RAMAN, J.
This is an appeal by plaintiff No.3 in O.S.No.737/1999 before
the Sub-ordinate Judges Court, Thrissur, against an order passed by
the court below in an application to set aside the ex parte order, and
for restoration and also to condone the delay in filing the said
application. Since there was a delay in filing this appeal, notice was
ordered. Service is complete and after hearing the parties we
condoned the delay, and when the matter came up for admission on
18/08/2008, we directed the appellant to serve a copy of the appeal
memorandum on the counsel appearing for the respondents.
2. The suit O.S.No.737/1999 was originally instituted by the
father of the appellant for an injunction. He died during the pendency
of the suit and the appellant along with his sister and mother got
impleaded as legal heirs to continue the suit.
3. Thereafter, when the case was posted for evidence before
the court below, the counsel for the appellant/plaintiff submitted ‘no
instruction’ and the same was dismissed for default. Later, an
application was filed for restoration of the suit. Since there was a
delay of 300 days, a petition for condonation of delay was also filed.
The delay was not condoned. Consequently the application for
F.A.O.No. 184 of 2005 -: 2 :-
restoration was also dismissed. We have perused the order of the
court below. The court below proceeded on the premise that since
the counsel submitted ‘no instruction’, he has no locus standi to file
the I.A. We cannot agree with this. May be the appellant’s/plaintiffs’s
counsel before the court below had no instruction at the time of taking
evidence. But, it cannot be said that he has no locus standi.
especially when he received instructions and filed I.A based on such
instruction. That court ought to have considered the matter on merits.
4. In the circumstances, the order impugned passed by the
court below in I.A.No.847/2004 and I.A.No.846/2004 are set aside,
and the matter is remanded to be reconsidered afresh by the court
below and pass orders on merits.
F.A.O is allowed as above. The parties shall appear before the
court below on 17/09/2008.
P.R.RAMAN,
Judge
T.R.RAMACHANDRAN NAIR,
Judge
ms