IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO No. 171 of 2007()
1. NANUKUTTAN, S/O SANKARAN,
... Petitioner
2. LALITHA KUMARI, D/O DEVAKI,
Vs
1. GOPALAN BALAKRISHNAN, S/O GOPALAN,
... Respondent
2. LEELA, W/O BALAKRISHNAN NAIR,
For Petitioner :SRI.D.KISHORE
For Respondent :SRI.L.MOHANAN
The Hon'ble MR. Justice K.PADMANABHAN NAIR
Dated :12/11/2007
O R D E R
"C.R."
K. PADMANABHAN NAIR ,J.
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F.A.O.No.171 of 2007
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Dated, this the 12th day of November, 2007
JUDGMENT
Heard. Admitted. Advocate Shri L.Mohanan takes notice for respondents.
Appeal itself is heard and disposed of as agreed to by both sides.
2. The defendants in O.S.No.1182/1997 on the file of the First
Additional Munsiff Court, Thiruvananthapuram who were respondents in
A.S.No.34/2001 on the file of the Principal Sub Judge, Thiruvananthapuram
( A.S.No.102/2001 of District Court, Thiruvananthapuram) are the appellants. The
following substantial questions of law arise for consideration in this appeal:
(1) Whether a counsel who had appeared for a party before the trial court
can be presumed to have knowledge about the filing of the appeal? and
(2) Whether he can be imputed with the knowledge of filing of any appeal
so as to appear for the party for whom he had appear before the trial court.
3. The respondents filed O.S.No.1182/1997 before the First
Additional Munsiff Court, Thiruvananthapuram for a declaration and injunction.
The appellants appeared and contested the matter. The trial court after
appreciating the evidence found that there was clear boundary to separate the
respondents/plaintiffs’ property from that of appellants/defendants and dismissed
the suit. Challenging that decree and judgment the respondents/plaintiffs filed
FAO No.171/2007 -: 2 :-
A.S.No.102/2001 before the District Court, Thiruvananthapuram which was
subsequently made over to the Principal Sub Court, Thiruvananthapuram and re-
numbered as A.S.No.34/2001. The lower appellate court raised one point which
reads as follows:
“Whether the judgment and decree of the trial court
are liable to be confirmed or set aside?”.
The lower appellate court after hearing the counsel appearing for
respondents/plaintiffs allowed the appeal, set aside the judgment and decree passed
by the court below and remanded the matter. It is recorded that the
appellants/defendants did not appear and argue the case in spite of receipt of
notice. After remand a commissioner was deputed and when the commissioner
issued notice the appellants filed a review petition before the lower appellate court
which was dismissed. Then they filed Writ Petition as W.P.(C) No.18562/2007
before this Court challenging the order passed in the review petition. The learned
Principal Sub Judge has forwarded the original Appeal Memorandum in its
original form along with proceedings paper to this Court. A perusal of the same
shows that the appeal was filed on 19.5.2001 before the District Court,
Thiruvananthapuram. Subsequently it was made over to the Principal Sub Judge’s
Court, Thiruvananthapuram and re-numbered as A.S.No.34/2001 and posted for
admission to 22.5.2001. On 22.5.2001 it was adjourned to 18.6.2001 and then to
19.6.2001. On 19.6.2001 the appeal was admitted and and notice was ordered
FAO No.171/2007 -: 3 :-
and posted the case for appearance of respondents to 13.8.2001. On 13.8.2001
office made a note to the effect that the respondents did not take any steps to issue
notice and so notice could not be sent. But on that day the court noted that
appellants/defendants (respondents in A.S.No.34/2001) appeared. Learned Sub
Judge also called for the records and subsequently appeal came up for hearing on
18.10.2002. Sub Judge had noted that both sides were present. On 4.7.2006 the
lower appellate court had noted that respondents/plaintiffs were represented by
their lawyer. The appellants/defendants were called and noted as absent. The
court below had also noted the name an Advocate who was appearing for the
appellants before the trial court. The case was posted for judgment to 11.7.2006.
On 11.7.2006 the counsel for the appellants filed I.A.No.2882/2006 for appointing
a commissioner. The Sub Judge posted the case to 18.7.2006. On 11.7.2006 the
lower appellate court noted that the Advocate who was appearing for the
appellants was absent. On 18.7.2006 court below allowed the appeal, set aside the
judgment and decree passed by the trial court and remanded the case for fresh
disposal.
4. In this appeal it is pointed out by the counsel for the appellants that
Advocate Shri C.S.Sukumaran Nair who was stated to have entered appearance for
the appellants/defendants before the lower appellate court had filed an affidavit in
W.P.(C) No.18562/2007. He had stated that he never appeared for the
appellants/defendants before the lower appellate court. He had also stated that he
FAO No.171/2007 -: 4 :-
was not engaged by the appellants/defendants nor did he appear and file vakkalath
for the appellants/defendants before the lower appellate court. The records show
that no notice was issued to the appellants/defendants. Somebody made a
representation before the lower appellate court that appellants/respondents 1 and 2
appeared. But no vakkalath or memo of appearance for the respondents was
filed. There is nothing on record to show that the copy of the Appeal
Memorandum was served on the respondents. The stand taken by the
respondents/plaintiffs is that since the appellants/defendants had appeared before
the trial court they were duty bound to appear before the lower appellate court also
without any fresh notice. I find it extremely difficult to accept that contention.
A lawyer is bound to appear for a party if he is properly instructed. In this case the
appellants/defendants never informed about the filing of the appeal. Notice was
not issued to the appellants as ordered. Considering all aspects of the matter I am
of the view that the lower appellate court should have corrected the mistake. So
the judgment and decree passed by the court below setting aside the judgment and
decree passed by the trial court and remanding the case without affording an
opportunity to the appellants/defendants are illegal and unsustainable and are
liable to be set aside.
In the result, appeal is allowed. The judgment and decree dated 18.7.2006
passed by the lower appellate court in A.S.No.34/2001 are hereby set aside.
Learned Principal Sub Judge, Thiruvananthapuram is directed to take
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A.S.No.34/2001 back to file and dispose of the same afresh after hearing both
sides. Parties shall appear before the court on 17.12.2007. I make it clear that no
fresh notice need be given to both sides in view of the notice given by this Court.
Lower appellate court shall try and dispose of the matter as expeditiously as
possible, at any rate, within a period of four months from the date of appearance of
parties before it.
I.A.No.2232/2007 will stand dismissed.
K. PADMANABHAN NAIR,
JUDGE.
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