Karmally vs Celeena, Josy, James and Sabu

Harun-UL-Rashid, J.—The appeal is directed against the order dated 24.11.2010 in I.A. No. 371/2008 in A.S. No. 82/2001 on the file of the Sub Court, Cherthala. The Appellant is the Plaintiff in O.S. No. 545/1998 on the file of the Munsiff Court, Cherthala. Suit was filed for a decree of permanent injunction. The Defendants contested the suit and filed counter claim. The learned Munsiff dismissed the suit and allowed the counter claim. The Plaintiff preferred A.S. No. 82/2001.

The learned Judge observed that the Appellant was not vigilant in prosecuting the case and that whenever the matter was taken up for hearing he did not show any interest in arguing the case and always sought for adjournment. The learned Judge also referred to the various application filed by the Appellant.

The learned Judge observed that the applications are not properly prosecuted nor the Appellant was interested in co-operating with the court in the hearing and disposal of the appeal. In these circumstances, the appeal was dismissed for default on 8.2.2008.

Subsequently, the Petitioner filed the present I.A, 371/2008 for re-admitting the appeal dismissed for default. The learned Judge made the observations which I have stated in the preceding paragraphs. The learned Counsel for the Appellant submitted that the application for re-admitting the appeal was dismissed without properly considering the reasons stated by the Appellant in the petition for re-admitting the appeal. The learned Counsel submits that the court below ought to have directed an enquiry in order to find the averments made in the affidavit filed in support of the petition were true or not. The learned Counsel also submits that the Appellant had already filed a petition for setting aside abatement and to implead the legal heirs of the 2nd Respondent who had passed away and that the Appellant bonafide wants to produce certain documents which are relevant for adjudication of the dispute between the parties. The learned Counsel concludes that there was no justification for the court below to reject the application for adjournment which was filed for valid reasons.

Taking into consideration the facts and circumstances of the case and considering the submissions made by the counsel for the Appellant, this Court finds that for the ends of justice, an opportunity shall be given to the Appellant to contest the case on merits. Now the appeal stands dismissed for default. There was no decision on merits. Though the Appellant was not vigilant in prosecuting the appeal, this Court is of the view that the application for re-admitting the appeal can be allowed on terms. Accordingly, the order in I.A. No. 371/2008 is set aside. The I.A is allowed on condition that the Appellant shall pay an amount of Rs. 2,500/- (Rupees Two Thousand and Five Hundred only) as cost to the counsel for the Respondents within a period of ten days from today, failing which the appeal shall stand dismissed.

The appeal is disposed of as above.