Appeal against sub-judge's order dismissing application for restoration of an appeal dismissed for default, noting potential bar due to prior merits disposal.
Impugned order set aside and matter remanded to appellate court for specific inquiry.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE M.N.KRISHNAN
CMA.No. 204 of 1997()
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AGAINST THE ORDER DATED 14/03/1997 IN IA 3077/95 IN AS.91/1987 of PRINCIPAL SUB COURT, PARAVUR
APPELLANT: (PETITIONERS)
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1. BALAKRISHNA PILLAI, SONOF PARAMESWARAN PILLAI, VELUTHEDATH, CHOORAKADU KARA, KIZHAKKAMBALAM.
2. RADHAMANI AMMA, WIFE OF BALAKRISHNAN PILLAI, ` KIZHAKKEDATHU VEEDU, -DO- -DO-
BY ADV. SRI.K.N.NARAYANA PILLAI
RESPONDENTS: (RESPONDENTS)
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1. SIVASANKARAN NAIR, SON OF LATE PARAMESWARAN PILLAI, ATHIRAKKADAYIL, CHEKKASSERY, MAYPRATHUVEETTIL, NJARALLOOR KARA, KIZHAKKAMBALAM VILLAGE.(DIED)
2. RAMAKRISHNA PILLAI SON OF LATE PARAMESWARAN PILLAI -DO
3. JANAKI AMMA, D/O. DO. DO.
4. THANKAMMA, D/O. DO. DO.
5. BHARGAVI AMMA, W/O.KUMARAN NAIR, MOSABTANK, HYDERABAD , ANDHRA PRADESH.
6. K.NALINI, D/O. DO. DO.
7. K.BABU, S/O. DO. DO.
C.M.A. NO.204/1997
*ADDL. RESPONDENTS IMPLEADED.
8. MALATHI.R. PILLAI, W/O. LATE RAMAKRISHNA PILLAI, MALATHY VILAS, MADRAS KAVALA, KOOVAPADY P.O., KOOVAPADY VILLAGE, (VIA) PERUMBAVOOR.
9. A.R.LATHIKA, D/O. LATE RAMAKRISHNA PILLAI DO. DO.
10. A.R.SUMESH, S/O. LATE RAMAKRISHNA PILLAI DO. DO.
11. A.R.RAJEEV, S/O. LATE RAMAKRISHNA PILLAI, MALATHY VILAS, MADRAS KAVALA, KOOVAPADY P.O., KOOVAPADY VILLAGE (VIA) PERUMBAVOOR.
12. A.R.SURESH, S/O. LATE RAMAKRISHNA PILLAI, MALATHY VILAS, MADRAS KAVALA, KOOVAPADY P.O., KOOVAPADY VILLAGE(VIA) PERUMBAVOOR.
13. V.K.AMMUKUTTY AMMA, W/O. PARAMESWARAN PILLAI, VALETHU VEEDU, PUNNORKODU KARA, PAZHAMTHOTTAM P.O.
14. V.P.THANKAMANI AMMA, D/O. PARAMESWSARAN PILLAI, DO. DO.
15. M.K.KRISHNAN NAIR, H/O. PADMINI AMMA, DO. DO.
16. SHIJU KUMAR, S/O. PADMINI AMMA, DO. DO.
17. SHINI, D/O. PADMINI AMMA, DO. DO.
18. V.P.RAVI PILLAI, S/O. PARAMESWARAN PILLAI, DO. DO.
19. P.R.NAIR, S/O. PARAMESWARAN PILLAI, DO. DO.
20. V.P.JAGADAMMA, W/O. NARAYANANKUTTY, THAYATH VEEDU, CHITHRAPUZHA KARA, IRIMBANAM P.O.
21. K.P.LEELAVATHY AMMA, W/O. SIVASANKARAN NAIR, KOTTAYATH HOUSE, KODUVAZHANGA, NEERIKODE P.O. ALUVA 683 511.
22. K.S.KRISHNA KUMAR, S/O. SIVASANKARAN NAIR, DO. DO.
C.M.A. NO.204/1997
23. MOHAN DAS, S/O. SIVASANKARAN NAIR, DO . DO.
ADDL.R8 TO R23 ARE IMPLEADED AS THE LEGAL HEIRS OF DECEASED R1 & R2 IN CMA AND SHRI.PARAMESWARAN PILLAI (R1 IN THE IMPUGNED ORDER) WHO WAS OMITTED TO BE ARRAYED AS RESPONDENT WHILE FILING CMA. AS PER ORDER DTD. 3.2.2009 IN IA. 3845/09.
BY ADV. SRI.S.V.BALAKRISHNA IYER
SRI.P.B.KRISHNAN SMT.SADHANAKUMARI EASWARI.
THIS CIVIL MISC. APPEAL HAVING BEEN FINALLY HEARD ON 22/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ORDER ON CMP.NO.4509/1997 IN CMA.NO. 204/1997
DISMISSED
22.12.2009 SD/- M.N.KRISHNAN, JUDGE
/TRUE COPY/
P.S. TO JUDGE
tss
M.N.KRISHNAN, J
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C.M.A. No.204 OF 1997
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Dated this the 22nd day of December 2009 JUDGMENT
This appeal is preferred against the order in I.A.No.3077 of 1995 in A.S.No.91 of 1987. This application is one for restoration of the appeal dismissed for default. By the order dated 14.3.1997, the learned Sub Judge had observed that when the appeal has already been disposed of on merit there is no scope for restoration of the appeal. It is further written that the only remedy open to the aggrieved party is to file a second appeal against the appellate judgment. Now the contentions of the learned counsel for the appellants are as follows: Against the dismissal of the appeal, AS No. 91 of 1987 for default, they had preferred second appeal, S.A.No.20 of 1995 and a learned Judge of this Court by judgment dated 13.6.1995 held that the appellants can file for restoration of the appeal, which was dismissed for default. It is in pursuance of the same, I.A.No.3077 of 1995 is filed.
CMA 204/1997 -:2:-
I.A.No.3077 of 1995 again and thereafter had passed an order whereby it is stated that since the appeal has been disposed of on merits, there is no scope for any restoration and thereby dismissed I.A.No.3077/1995.
CMA 204/1997 -:3:-
merits, as seen from the copy of the judgment dated 23.6.1994. If the answer to the question is in the affirmative then I.A.No.3077/95 cannot be entertained and it has only to be dismissed. So for the limited purpose of doing this, the order under challenge is set aside and the matter is sent back to the court below to consider the question whether any application prior to I.A.No.3077/95 to restore the appeal had been entertained and thereafter the appeal had been disposed of on merits. As I stated earlier, if the answer is in the affirmative nothing remains to be done and I.A.No.3077/95 has only to be dismissed. If it is otherwise, necessarily, I.A.No.3077/95 has to be heard on merits and disposed of in accordance with law. Parties are directed to appear before the appellate court on 14.1.2010 and let the matter be disposed of within two months from the date of appearance of the parties.
CMA is disposed of accordingly.
M.N.KRISHNAN, JUDGE
Cdp/-
2 issues framed by the court
Whether to set aside the order dismissing the sub-judge's application for restoration of an appeal dismissed for default.
Whether the matter should be remanded to the appellate court to determine if a prior restoration application was allowed and the appeal disposed of on merits.
Balakrishna Pillai and Ors.
Sivasankaran Nair and Ors.
M.N.Krishnan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
