FAO NO. 138 OF 2024 1 2025:KER:25556 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. 138 OF 2024 AGAINST THE ORDER DATED 13.09.2024 IN AS NO.15 OF 2021 OF SUB COURT, ATTINGAL APPELLANT/APPLICANT/APPELLANT/PLAINTIFF DENSIL DE-SOUZA AGED 75 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 MASIL NETTO AGED 78 YEARS D/O CICIL DE-SOUZA, THETTIMOOLA VEEDU, THEKKUMBHAGOM KADAKKAVOOR P.O, THIRUVANANTHAPURAM DISTRICT, PIN - 695306 FAO NO. 138 OF 2024 2 2025:KER:25556 2 SHAM NETTO @ RONALD NETTO AGED 53 YEARS S/O CICIL DE-SOUZA, THETTIMOOLA VEEDU, THEKKUMBHAGOM KADAKKAVOOR P.O, THIRUVANANTHAPURAM DISTRICT., PIN - 695306 BY ADVS. M.AJITH (KARICODE)- FOR R1 R.MOHANA BABU - FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 24.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: FAO NO. 138 OF 2024 3 2025:KER:25556 JUDGMENT This appeal is filed challenging the order dated 13.09.2024 in I.A.No. 221 of 2023 in A.S.No. 15 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 viz. A.S.Nos.13, 14 and 16 of 2021 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. The said I.A. was dismissed by the Sub Court FAO NO. 138 OF 2024 4 2025:KER:25556 vide the impugned order holding that since a time period had been fixed by this Court in O.P(C)No. 912 of 2021 for the disposal of two connected appeals viz., A.S.Nos.13 and 14 of 2021, granting of the prayer sought for in the I.A. would tantamount to extending the time period thus fixed by this Court in the said appeals. 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. 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 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 for default and an impugned order was rendered in the I.A. 5. I have heard both sides in detail and have perused the records. I note that this Court had vide judgment dated FAO NO. 138 OF 2024 5 2025:KER:25556 22.06.2023 in O.P.(C)Nos.900 and 912 of 2021 inter alia directed disposal of connected A.S. Nos.13 and 14 of 2021 within a period of three months. This appeal viz. A.S.No.15 of 2021 was posted along with A.S.Nos.13 and 14 of 2021 for hearing and the Sub Court had vide the impugned order dismissed the relevant I.A. in A.S.No.15 of 2021 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 other two appeals were directed to be disposed of by 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 disposal of the connected 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 matter posted for hearing. Such practice of seeking and obtaining adjournments by a party who had first FAO NO. 138 OF 2024 6 2025:KER:25556 sought and obtained a time-bound disposal order from this Court in connected matters is to be thoroughly depreciated. 7. Though I do not find that the reasons stated for seeking to restore the appeal and to challenge 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 Subordinate Judge’s Court, Attingal within a period of one month from today. Upon due compliance with the said direction, A.S.No.15 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. SMM JUDGE FAO NO. 138 OF 2024 7 2025:KER:25556