Nazeer vs Jameel Sooraj And Ors

This appeal is filed against an order passed by the Subordinate Judge's Court, Tirur on 08.12.2020 in I.A.No.01 of 2020 in A.S.No.04 of 2018.

I.A.No.01 of 2020 was an application filed by the petitioner under Order XLI Rule 19 of C.P.C requesting to re-admit the appeal which was dismissed

for default on 03.02.2020.

A suit for eviction was filed by the respondent/plaintiff and it was defended by the appellant claiming protection under Indian Easement Act for the

reason that he had constructed a Godown at his own expenses on the rear side of the shop room. The suit was decreed and against that the appeal

was preferred. The appeal was scheduled for hearing on 03.02.2020. The petitioner went to Ethiopia on 01.02.2020. Since he was not available in

India as on 03.02.2020, the appeal was dismissed for default. It was contended, he could not give any instruction to the lawyer for being away from

hometown. Raising a plea that latches was not there on his part, the appeal was sought to be restored.

The respondent has contended that the application is nothing but a dilatory tactics. It was contended that the delaying tactics was adopted by the

appellant with abundant knowledge that he has no chance to win the case. The proceedings pending being appeal, personal appearance of the

appellant was not at all necessary. 7 years have elapsed from the filing of the suit for getting vacant possession of the building from the defendant and

the appellant evaded to prosecute the case in a context when at the behest of the opposite side, orders for time bound disposal of the appeal had also

been issued by this Court. Restoration of the appeal was allowed in an earlier occasion on consent of the opposite party. Therefore, the application

was sought to be dismissed.

The court below in the impugned order has observed that there was clear latches and negligence on the part of the petitioner in not contesting the

appeal on 03.02.2020. As put forth by the respondent, the petitioner was available at his hometown till 01.02.2020 and left for Ethiopia only on that

day.

Therefore, he had enough time to instruct his counsel for arguing the appeal. Presence of the petitioner on the hearing date is absolutely uncalled for,

since only argument by counsel is warranted in an appeal.

The court below cannot be found fault with in passing the impugned order. Latches on the side of the petitioner in not contesting the appeal, cannot

be denied. Eventhen, appeal being continuation of the suit, the party must be heard. The order suffers for the reason that, a valuable right of the

petitioner to be heard was denied by the court.

In the result, the appeal is allowed, the impugned order is set aside and the appeal is restored to the files of Sub Court, Tirur on payment of cost of

Rs.12,000/- to the counsel for the respondent. Sub Court, Tirur shall take the appeal back to it's file, shall hear and dispose it of within a period of three

weeks from the date of this judgment. The appellant/petitioner shall see that the opportunity granted to him is effectively availed and shall co-operate

with the court in the disposal of the appeal on merits. The Sub Court, Tirur shall see that the cost ordered is paid and in the event of non-payment of

the cost, the order under challenge can be treated as revived. The appellant will not be entitled to get further adjournments in the matter of arguing the

appeal.