IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 74 of 2009()
1. P.AHAMMED, S/O.KADIRI,
... Petitioner
2. KUNNUMMAL NAFEESA ALIAS NAABISA,
Vs
1. ATHAYAKUNNINMAL MARIYAKUTTY,
... Respondent
2. KANHIRAMANNIL SUIBEENA ALIAS
3. DO. DO. RAJITHA, DO. DO.
4. KANHIRAMANNIL SAFIYA, DO.KADIRI,
For Petitioner :SRI.P.V.KUNHIKRISHNAN
For Respondent :SRI.S.V.BALAKRISHNA IYER (SR.)
The Hon'ble MR. Justice V.RAMKUMAR
Dated :22/05/2009
O R D E R
V. RAMKUMAR, J.
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F.A.O.No.74 of 2009
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Dated this the 22nd day of May, 2009
JUDGMENT
Defendants 1 and 2 in O.S.No.9 of 2002 on the file of the
Munsiff’s Court, Quilandy are the appellants in this appeal. The
said suit filed by respondents 1 to 3 herein was one for a
declaration and injunction in respect of the plaint schedule
properties . As per judgment and decree dated 19.1.2007, the
trial court decreed the suit. Aggrieved by the decree, the
appellants herein preferred an appeal before the Sub Court,
Koyilandy as A.S.No.43 of 2007 . After completion of service of
summons to the respondents in the appeal, the appeal was
posted for hearing on 18.8.2008. On that day, Advocate
Sri.K.P.Damodaran Nambiar, a senior lawyer from Kozhikode
who was appearing for the appellants was unable to appear
before the Subordinate Judge, Koyilandi as he was engaged in
another case at Kozhikode. An application was filed by the
applicants before the Subordinate Judge, Koyilandi seeking an
adjournment of the hearing. The case was adjourned to
F.A.O.No.74 of 2009
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22.8.2008. On that day since the 1st appellant was allegedly laid
up and the second appellant who is his wife was allegedly
attending on the the 1st appellant, they were unable to go to
Kozhikode and consequently the appellants and their lawyer
from Kozhikode were unable to appear before the Subordinate
Judge at Koyilandi,. The appeal was therefore dismissed for
default under Order 41 Rule 17 C.P.C. Even though an
application for re-admission of the appeal dismissed for default
was filed as I.A.No.1360 of 2008 by invoking Rule 19 of Order 41
C.P.C, the lower appellate court, as per the impugned order
dated 22.11.08, dismissed the said application holding, inter alia,
that there was no medical evidence produced to show that the 1st
appellant was not well and also holding that the appellants were
guilty of gross negligence in the conduct of the case. Hence this
appeal.
2. Eventhough senior Advocate Sri.S.V.Balakrishna Iyer,
appearing on behalf of respondents 1 to 3/plaintiffs, submitted
that there is absolutely no bona fide either in the appeal or in the
alleged reason put forward in support of I.A.No.1360 of 2008,
being a first appeal in which the appellants had a right to be
F.A.O.No.74 of 2009
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heard on facts after a re-appraisal of the oral and documentary
evidence in the case, I am of the view that the appellants should
be given an opportunity to have the appeal disposed of on merits.
The view taken in Raghavan Pillai v. Thomas (2009(2) KLT
(SN)53 is also along the same lines as above. Accordingly,
I.A.No.1360 of 2008 filed by the appellants before the court
below for re-admission of the appeal which was dismissed for
default shall stand allowed and A.S.No.43 of 2004 shall stand
restored to file. Being an appeal of the year 2007, the learned
Subordinate Judge shall give some priority to the appeal which
shall be disposed of as expeditiously as possible. The parties
shall appear before the lower appellate court without any further
notice on 15.6.2009.
Dated this the 22nd day of May , 2009.
V. RAMKUMAR, JUDGE
sj