Allowed

Punnoose Joseph v. Thomas Varghese (Deceased)

Kerala HC18 Nov 2022FAO/173/2014

Case brief

AI extract

What is this about?

The High Court allowed an appeal filed by legal heirs challenging the dismissal of a pending appeal due to default. The court held that sufficient cause existed for delay and restored the appeal to file for reconsideration on merits in the interest of substantial justice.

What did the court decide?

The impugned orders dismissing the restoration application are set aside, the appeal is restored to the file for reconsideration on merits, and the lower court is directed to issue notices to responde

Punnoose Joseph Vs Thomas Varghese (Deceased) — Civil Procedure and Limitation | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

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THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN

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FRIDAY, THE 18^TH DAY OF NOVEMBER 2022 / 27TH KARTHIKA,

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1944

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FAO NO. 173 OF 2014

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ORDER DATED 12.07.2013 IN IA 1325/2011 AND 1326/2011 IN AS 3/2008 OF SUB COURT, THIRUVALLA

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APPELLANTS/PETITIONERS 1 & 3-APPELLANTS 1 & 3:

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1 PUNNOOSE JOSEPH, AGED 43 YEARS S/O.IYPE JOSEPH, VENGAL PUTHANVEETTIL, PADINJAREKKARA MURIYIL, NEDUMPRAM VILLAGE

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*2 IYPE JOSEPH, AGED 40 YEARS, (DECEASED) VENGAL PUTHANVEETTIL, PADINJAREKKARA MURIYIL, NEDUMPRAM VILLAGE

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ADDL.A3 MARIAM JOSEPH, AGED 71 YEARS W/O IYPE JOSEPH, VENGAL PUTHENVEETTIL, AMICHERY P O, PADINJAREKKARA MURIYIL, NEDUMPURAM VILLAGE, PIN 689112

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(THE 1ST APPELLANT IS RECORDED AS ONE OF THE LEGAL REPRESENTATIVES OF THE DECEASED 2ND APPELLANT AS PER THE ORDER DTD. 14/03/22 IN IA 1/22.)

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(ADDITIONAL 3RD APPELLANT IS IMPLEADED AS PER ORDER DATED 14/03/2022 IN IA 1/2022.)

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BY ADVS. SANTHOSH MATHEW SRI.ARUN THOMAS SRI.JENNIS STEPHEN

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FAO NO. 173 OF 2014

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..2..

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RESPONDENTS/CR.PETITIONERS & 2ND PETITIONER-RESPONDENTS &

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2ND APPELLANT:

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1 THOMAS VARGHESE (DECEASED) AGED 73 YEARS, S/O.THOMAS, KOYIKKERILAYA KOODARATHIL VEETTIL, AMICHAKARI P O, NEDUMPRAM VILLAGE - 689578 2 K V THOMAS, AGED 41 YEARS S/O.THOMAS VARGHESE,KOYIKKERILAYA KOODARATHIL VEETTIL, AMICHAKARI P O, NEDUMPRAM VILLAGE - 689578 (2ND RESPONDENT IS RECORDED AS LEGAL HEIR OF DECEASED 1ST RESPONDENT AS PER THE ORDER DATED 10.02.2022 IN IA 3/2022.) 3 THOMAS JOSEPH S/O.IYPE JOSEPH, VENGAL PUTHANVEETIL, PADINJAREKKARA MURIYIL, NEDUMPRAM VILLAGE - 689578 4 SWAPNA SAJU, AGED 45 YEARS D/O LATE IYPE JOSEPH, RESIDING AT MULLAPALLIL HOUSE, KUNJITHANI P O, MUNNAR, PIN 685565 (2ND RESPONDENT IS RECORDED AS LEGAL HEIR OF DECEASED 1ST RESPONDENT AS PER THE ORDER DATED 10.02.2022 IN IA 3/2022.) (3RD RESPONDENT IS IMPLEADED AS ADDITIONAL 4TH RESPONDENT AS PER THE ORDER DATED 14/03/2022 IN IA 1/2022.) THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 18.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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FAO NO. 173 OF 2014

JUDGMENT

A. MUHAMED MUSTAQUE, J.

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This appeal was filed in the year 2014,

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challenging the dismissal of the application to restore the appeal filed before the Sub

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Court, Thiruvalla, which was dismissed for default.

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accompanied by an application to condone the delay of 522 days in filing the restoration application. The delay condonation application was dismissed, consequent to which, the restoration application was also dismissed.

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Pending appeal, the 2^nd appellant and the 1^st respondent died. Additional 3^rd appellant and the additional 4^th respondent are impleaded as the legal heirs of the 2^nd appellant and the 1^st appellant is recorded as one of the legal heirs of the deceased 2^nd appellant. The 2^nd respondent is recorded as the legal heir of

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FAO NO. 173 OF 2014

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..4..

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the 1^st respondent. Though service of notice was effected, none appears for the respondents.

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The appellate court, in fact, passed a detailed order while dismissing the

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application for restoration. The sufficient cause cited before the appellate court was that the wife of the 1^st appellant was undergoing treatment at the Medical College Hospital, Kottayam, and other various private hospitals. Exts.A1 to A3 were also produced as proof of treatment.

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It is to be noted that the appellate court had

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the advantage to peruse the records and

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decide the case on merits instead of dismissing the appeal for non prosecution. It may be true, there are laches on the part of the appellant in prosecuting the appeal. But, those laches can be remedied by way of payment of costs. Hence, we are of the view that in

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FAO NO. 173 OF 2014

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..5..

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the interest of substantial justice, the appeal will have to be restored to file for

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reconsideration on merits.

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Accordingly, the appeal is allowed. The

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impugned orders are set aside and the appeal is restored to file. If none appears for the respondents before the appellate court, the

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appellate court shall issue notice to respondents 2 & 3 in this appeal. The appellants are directed to pay costs of Rs.5,000/- (Rupees five thousand only) on

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their appearance before the appellate court, within two weeks of their appearance.

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Sd/-

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A. MUHAMED MUSTAQUE

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JUDGE

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Sd/-

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SHOBA ANNAMMA EAPEN

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JUDGE

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bka/-

Punnoose Joseph v. Thomas Varghese (Deceased)

Case brief

What is this about?

What did the court decide?

Punnoose Joseph v. Thomas Varghese (Deceased)

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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