FAO NO. 132/2024 1 2025:KER:25558 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.132 OF 2024 ARISING OUT OF THE ORDER DATED 13.09.2024 IN IA NO.219/2023 IN AS NO.13/2021 OF SUBORDINATE JUDGE'S COURT, ATTINGAL APPELLANT/APPLICANT/APPELLANT/PLAINTIFF: 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 PETITIONERS/RESPONDENTS/DEFENDANTS: 1 TELMA 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 SHAM NETTO @ RONALD NETTO AGED 50 YEARS S/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 FAO NO. 132/2024 2 2025:KER:25558 3 RAVI AGED 69 YEARS S/O MADHAVAN, THETTIMOOLA VEEDU, THEKKUMBHAGOM KADAKKAVOOR P.O, THIRUVANANTHAPURAM DISTRICT, PIN - 695306 4 VIJAYAN AGED 60 YEARS S/O VIDHYADHARAN, PANDARAVILAKOM VEEDU, KADAKKAVOOR, P.O, THIRUVANANTHAPURAM, PIN - 695306 5 SHAJI AGED 55 YEARS S/O VIDHYADHARAN, KANNICHAL, AZHIKOM, KADAKKAVOOR P.O, THIRUVANANTHAPURAM DISTRICT- NOW RESIDING AT KAMICHELAZHIKOM HOUSE, THEKKUMBHAGOM, KADAKKAVOOR P.O, THIRUVANANTHAPURAM, PIN - 695306 6 THANKACHI AGED 55 YEARS D/O VIDHYADHARAN, RESIDING AT VALIYAMESSIRICAL VEEDU, THEKKUMBHAGOM,, KADAKKAVOOR, THIRUVANANTHAPURAM, PIN - 695306 7 SREELATHA AGED 65 YEARS W/O LATE PRASAD, VALIYAMESSIRICAL VEEDU, THEKKUMBHAGOM, KADAKKAVOOR, THIRUVANANTHAPURAM, PIN - 695306 8 SHIBU PRASAD AGED 48 YEARS S/O LATE PRASAD, VALIYAMESSIRICAL VEEDU, THEKKUMBHAGOM, KADAKKAVOOR, THIRUVANANTHAPURAM, PIN - 695306 9 BIJU PRASAD AGED 45 YEARS S/O LATE PRASAD, VALIYAMESSIRICAL VEEDU, THEKKUMBHAGOM, KADAKKAVOOR, THIRUVANANTHAPURAM, PIN - 695306 FAO NO. 132/2024 3 2025:KER:25558 10 BAIJU PRASAD AGED 42 YEARS S/O LATE PRASAD, VALIYAMESSIRICAL VEEDU, THEKKUMBHAGOM, KADAKKAVOOR, THIRUVANANTHAPURAM, PIN - 695306 BY ADVS. M.AJITH (KARICODE, R1 R.MOHANA BABU(K/000181/1989, R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 24.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: FAO NO. 132/2024 4 2025:KER:25558 JUDGMENT Dated this the 24th day of March, 2025 This appeal is filed challenging the order dated 13.09.2024 in I.A.No.219 of 2023 in A.S.No.13 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 was 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 FAO NO. 132/2024 5 2025:KER:25558 I.A., which was dismissed by the Sub Court vide the impugned order holding that since a specified time period of three months had been fixed by this Court in O.P.(C) No.912 of 2021 for the disposal of the said appeal, the granting of 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. Service of notice was completed against all the respondents. Heard Sri.Saju J. Panicker, Advocate for the appellant and Sri.M.Ajith Advocate for the 1st respondent. There was no appearance for the other respondents in spite of service of notice. 4. The learned counsel for the 1st respondent vehemently objected to the prayers sought in the F.A.O. 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 litigation. The appellant had been regularly adjourning the hearing of the appeals under one pretext or another and it is also after taking note of the repeated and constant adjournments sought that the A.S. was dismissed 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 FAO NO. 132/2024 6 2025:KER:25558 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, which had been dismissed along with the above A.S.No.13 of 2021, 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. after taking due note of the said judgment and holding that allowing the I.A. 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.No.15 of 2021 and A.S.No.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 time bound FAO NO. 132/2024 7 2025:KER:25558 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 A.S. 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 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/- (Rupees Two Thousand only) before the District Legal Services Authority, Thiruvanathapuram, and produce receipt thereof before the Registry of the Subordinate Judge’s Court, Attingal, within a period of one month from today. Upon due FAO NO. 132/2024 8 2025:KER:25558 compliance with the said direction, A.S.No.13 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 F.A.O. is disposed as above. Sd/- SYAM KUMAR V.M. JUDGE csl