Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 31ST DAY OF JULY 2013 9TH SRAVANA, 1935 FAO.No. 210 of 2011 ( ) ------------------------ THE ORDER/JUDGMENT IN I.A.NO.1773/2010 IN AS 287/2007 of DISTRICT COURT,KOLLAM DATED 28 02-2011 APPELLANT(S)/APPELLANT/PETITIONER/DEFENDANT: -------------------------------------------- RETNAMMAL, D/O.SUNDARAMMAL, CHOOLOOR, KIZHAKKATHIL VEEDU, THIRUMULLAVARAM, KAVANAD P.O. KOLLAM. BY ADV. SRI.K.SUBASH CHANDRA BOSE RESPONDENT(S)/COUNTER PETITIONER/RESPONDENT/PLAINTIFF: ------------------------------------------------------ BHARGAVI, ANDHUTHARA VEEDU, THIRUMULLAVARAM, KAVANAD P.O., KOLLAM. BY ADV. SMT.T.S.MAYA (THIYADIL) BY ADV. SMT.K.G.BINDU THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 31-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J.
========================= F.A.O.No.210 of 2011 ============================ Dated this the 31st day of July, 2013 JUDGMENT
The substantial question of law arising for a decision in this appeal is whether having regard to the fact situation the lower appellate court was justified in refusing to readmit the appeal for hearing.
2. The appeal arises from the order dated 28.02.2011 on I.A.No.1773 of 2010 in A.S.No.287 of 2007 of the District Court, Kollam.
3. The appellant preferred that appeal challenging judgment and decree of Munsiff's Court, Kollam in O.S.No.76 of 2005. The appeal was dismissed for default on 05.08.2010 for absence of the appellant and counsel. That was followed by the appellant filing I.A.No.1773 of 2010 under Rule 19 of Order XLI of the Code of Civil Procedure. Learned District Judge found no sufficient cause for absence of the appellant and counsel on 05.08.2010 and dismissed the application.
4. Learned counsel submits that having regard to the fact situation learned District Judge ought to have allowed the application and readmitted the appeal. It is contended that the F.A.O.No.210 o”
2. appellant lost opportunity to prosecute the appeal and challenge correctness of judgment and decree of the trial court. Learned counsel for the respondent has invited my attention to the fact situation revealed by the order of the learned District Judge.
5. Learned District Judge has observed that on the previous dates also the appellant and counsel had not turned up for arguing the appeal though there was orders like "no further time", "finally", etc and that on 05.08.2010 the counsel who represented the counsel for the appellant submitted that counsel for the appellant has no instruction. Learned District Judge directed the counsel to file a memo. The appellant was found absent. Hence the appeal was dismissed.
6. Some of the decisions of the Supreme Court say that when a counsel reports no instruction, the Court has to issue notice to the party concerned though, it may not be necessary in every case as clarified by the Division Bench of this Court. Learned counsel for the appellant submits that representation on behalf of counsel for the appellant was made in the lower appellate court on 05.08.2010 by a comparatively junior counsel who had not understood the instruction given by the counsel for the appellant.
7. Having regard to the circumstances I am inclined to think that the appellant could be given opportunity to prosecute F.A.O.No.210 o”
3. the appeal but on terms.
8. The substantial question of law framed is answered as above. Resultantly this appeal is allowed in part as under: (i) Order dated 28.02.2011 on I.A.No.1773 of 2010 in A.S.No.287 of 2007 of the District Court, Kollam will stand set aside, I.A.No.1773 of 2010 allowed and A.S.No.287 of 2007 readmitted to the file on condition that the appellant pays to respondent through counsel appearing in this Court `2000 (Rupees Two Thousand Only) by way of cost within a month from this day. (ii) In case of non compliance, the appeal will stand dismissed in confirmation of order dated 28.02.2011 on I.A.No.1773 of 2010 (iii) On compliance, A.S.No.287 of 2010 will stand remitted to the learned District Judge, Kollam for decision on merit. Post after a month. All pending interlocutory applications will stand dismissed. Sd/- THOMAS P.JOSEPH, JUDGE Sbna True Copy P.A to Judge