FAO NO. 133 OF 2024 1 2025:KER:25557 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M. MONDAY, THE 24TH DAY OF MARCH 2025 / 3RD CHAITHRA, 1947 FAO NO. 133 OF 2024 AGAINST THE ORDER DATED 13.09.2024 IN AS NO.14 OF 2021 OF SUB COURT,ATTINGAL APPELLANT/APPLICANT/APPELLANT/1ST DEFENDANT DENSIL DE-SOUZA AGED 73 YEARS S/O CICIL DE-SOUZA, RESIDING AT MILLI LODGE, THANAKSSERI P.O, KOLLAM FROM BLANCHI VILLA, THETTIMOOLA, THEKKUMBHAGOM KADAKKAVOOR P.O, THIRUVANANTHAPURAM DISTRICT, PIN - 695306 BY ADVS. SAJU J PANICKER KURIAN K JOSE RESPONDENTS/COUNTER PETITIONER/RESPONDENTS/PLAINTIFF/DEFENDANTS 2 TO 6 1 TELMA MASIL NETTO AGED 79 YEARS D/O CICIL DE-SOUZA, THETTIMOOLA VEEDU, THEKKUMBHAGOM KADAKKAVOOR P.O, THIRUVANANTHAPURAM DISTRICT NOW RESIDING AT S. M. MANZIL, KATTU MURAKKAL, MUDAPURAM P.O, CHIRAYINKEEZHU, THIRUVANANTHAPURAM, PIN - 695314 2 BLANCH PEREIRA AGED 70 YEARS D/O CICIL DE-SOUZA, THETTIMOOLA VEEDU, THEKKUMBHAGOM KADAKKAVOOR P.O, THIRUVANANTHAPURAM DISTRICT, PIN - 695306 FAO NO. 133 OF 2024 2 2025:KER:25557 3 FRANCIS PEREIRA * DIED AGED 83 YEARS S/O EDGER PEREIRA, THETTIMOOLA VEEDU, THEKKUMBHAGOM KADAKKAVOOR P.O, THIRUVANANTHAPURAM DISTRICT-.(DIED), PIN - 695306 4 FLORID HENRY PEREIRA AGED 42 YEARS S/O FRANCIS PEREIRA, THETTIMOOLA VEEDU, THEKKUMBHAGOM KADAKKAVOOR P.O, THIRUVANANTHAPURAM DISTRICT, PIN - 695306 5 SHERIN PEREIRA D/O FRANCIS PEREIRA, RESIDING AT FLAT NO: 3, NUHAS BUILDING, NEAR RAILWAY GATE, MURUKKUMPUZHA P.O, THIRUVANANTHAPURAM ., PIN - 695302 6 MERIN PEREIRA AGED 38 YEARS D/O FRANCIS PEREIRA, RESIDING AT FLAT NO: 3, NUHAS BUILDING, NEAR RAILWAY GATE, MURUKKUMPUZHA P.O, THIRUVANANTHAPURAM .,PIN-695302. * IT IS RECORDED THAT THE 3RD RESPONDENT IS DIED & THE LEGAL HEIRS OF R3 ARE RESPONDENTS 4,5 & 6 AND THEY ARE ALREADY IN THE PARTY ARRAY AND THERE IS NO NEED TO IMPLEAD THE LEGAL HEIRS OF R3 AS PER ORDER DATED 20/02/2025 IN MEMO DTD. 7/02/2025., BY ADVS. M.AJITH (KARICODE)-R1 R.MOHANA BABU(K/000181/1989)-R1 THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR HEARING ON 24.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: FAO NO. 133 OF 2024 3 2025:KER:25557 JUDGMENT This appeal is filed challenging the order dated 13.09.2024 in I.A.No.220 of 2023 in A.S.No.14 of 2021 of the Subordinate Judge’s Court, Attingal. Appellant was the applicant in the said I.A. and appellant in the said A.S. Respondents were the counter petitioners and respondents in the said I.A. and A.S. respectively. Parties are hereinafter referred to as per their status in the appeal before this Court. 2. The grievance of the appellant is that the above A.S. along with other connected appeals were posted for hearing before the Sub Court on 20.10.2023. On the said date, the appellant's Counsel could not appear and argue the matter as he had to be in Thiruvananthapuram to conduct certain other litigations. Accordingly, another advocate had represented the matter and sought an adjournment of the appeals to the very next day. However, the said prayer was declined by the Sub Court and the above A.S. along with connected appeals were dismissed. Towards restoring the appeal back to file, the appellant had filed the above I.A. which was dismissed by the Sub Court vide the impugned order holding that since a FAO NO. 133 OF 2024 4 2025:KER:25557 specified time period of 3 months this Court in O.P.(C)No.912 of 2021 for the disposal of the said appeal, the granting of the prayer sought for in the I.A. would tantamount to extending the time period fixed by this Court. Aggrieved by the said dismissal of the I.A. seeking to restore the appeal, the appellant had filed this F.A.O. 3. Heard Sri. Saju J. Panicker, Advocate for the appellant and Sri. M.Ajith, Advocate for the 1st respondent. Service of notice was completed against respondents 1 and 2 and against the legal heirs of the 3rd respondent.. The notice for substituted service taken out against 4th respondent was returned stating that the said respondent had shifted out from the relevant address years back. It is stated that the said respondent had not entered in appearance before the Sub Court either. 4. The learned counsel for the 1st respondent vehemently objected to the prayers sought in the FAO and submitted that the appeal lacks bonafides and the attempt of the appellant all along has been to initiate one litigation after the other and thus to protract the matter. The appellant had been regularly adjourning the hearing of the appeals under one pretext or another and it is only after taking note of the repeated and constant adjournments sought that the appeal was dismissed FAO NO. 133 OF 2024 5 2025:KER:25557 for default and an impugned order was rendered in the I.A. It is stated that O.S.No.321 of 2001 is a suit filed by the 1st respondent which had been decreed as early as 2001, the benefit of which is attempted to be denied to the 1st respondent by the appellant by incessant initiation of vexatious litigations. A.S.No.14 of 2021 mentioned above is filed challenging the said judgment and decree in O.S.No.321 of 2001. 5. I have heard both sides in detail and have perused the records. I note that this Court had vide judgment dated 22.06.2023 in O.P.(C) Nos. 900 and 912 of 2021 inter alia directed disposal of A.S.Nos. 13 and 14 of 2021 within a period of three months. The Sub Court had vide the impugned order dismissed the relevant I.A. stating that allowing the same and restoring the appeal back to file would in effect amount to extending the time period of three months within which the appeal was directed to be disposed of by this Court. The I.As seeking to restore A.S. Nos.15 of 2021 and 16 of 2021 which had been posted together were also dismissed by the Sub Court. The said orders too have been impugned before this Court. 6. It was incumbent on the appellant to be ready for hearing so as to ensure that the direction of this Court for the FAO NO. 133 OF 2024 6 2025:KER:25557 time-bound disposal of the appeals could be duly complied with by the Sub Court. After having obtained a direction from this Court for time-bound disposal, the appellant cannot be heard to seek an adjournment of the hearing on any personal or similar grounds whatsoever. The purported personal inconvenience of the lawyer stated as a reason for seeking adjournment of the A.S. is not a valid reason at all for adjourning a time-bound disposal matter. Such practice of seeking and obtaining adjournments by a party who had first sought and obtained a time-bound disposal order from this Court is to be thoroughly depreciated. 7. Though I do not find that the reasons stated for seeking to restore the appeal and in the challenge of the order impugned in this appeal are valid, taking note of the larger premise that it is always preferable in the interest of substantial justice that a matter be decided on merits rather than the default, I deem it fit and proper to allow this appeal, albeit on terms. The appellant is directed to remit an amount of Rs.2,000/- before the District Legal Services Authority, Thiruvananthapuram and produce receipt thereof before the Registry of the Subordinate Judge’s Court, Attingal within a period of one month from today. Upon due compliance with the FAO NO. 133 OF 2024 7 2025:KER:25557 said direction, AS No. 14 of 2021 before the Subordinate Judge’s Court, Attingal shall stand restored back to file and the same shall be disposed of by the Sub-Court within a period of three months from the date of such restoration of the appeal. This FAO is disposed as above. Sd/- SYAM KUMAR V. M. SMM JUDGE