Kerala High Court
Shanavaskhan Sidhique vs Hassankunju on 31 July, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
2025:KER:57936
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
THURSDAY, THE 31ST DAY OF JULY 2025 / 9TH SRAVANA, 1947
FAO NO. 85 OF 2025
AGAINST THE ORDER DATED 25.03.2025 IN RESTORATION PETITION
NO.44/2024 IN AS NO.108 OF 2019 OF ADDITIONAL SESSIONS
COURT (SPECIAL COURT)-II, KOTTAYAM
APPELLANTS/APPELLANTS/PLAINTIFFS:
1 SHANAVASKHAN SIDHIQUE
AGED 53 YEARS, S/O SIDHQUE, SAUDI ARABIA KENTS
COMPANY LTD. P.O. BOX NO.60752, RIYADH-11555,
SAUDI ARABIA, FROM CHIRAYIL HOUSE,
THALAYOLAPARAMBU KARA, VADAYAR VILLAGE, VAIKOM
TALUK, KOTTAYAM, PIN 686141 REPRESENTED BY POWER
OF ATTORNEY HOLDER SIDHIQUE, 80 YEARS, S/O KAYI,
CHIRAYIL HOUSE, THALAYOLAPARAMBU KARA, VADAYAR
VILLAGE, VAIKOM TALUK, KOTTAYAM,
2 SIDHIQUE
AGED 80 YEARS, S/O KAYI, CHIRAYIL HOUSE,
THALAYOLAPARAMBU KARA, VADAYAR VILLAGE, VAIKOM
TALUK, KOTTAYAM, PIN - 686141
BY ADVS.
SHRI.LAL K.JOSEPH
SRI.P.MURALEEDHARAN (THURAVOOR)
SMT.T.A.LUXY
2025:KER:57936
F.A.O.No.85 of 2025
-: 2 :-
SHRI.SURESH SUKUMAR
SRI.ANZIL SALIM
SHRI.SANJAY SELLEN
SHRI.ADITHYA S. PUTHEZHATH
SMT.AAMINA RAFEEK
SRI.C.Y.VINOD KUMAR
SHRI.C.ANILKUMAR (KALLESSERIL)
SRI.P.M.MANASH
RESPONDENT/RESPONDENT/DEFENDANT:
HASSANKUNJU
AGED 58 YEARS
S/O KAYI PILLAI, KUTTAMPARAMBIL HOUSE,
THALAYOLAPAARAMBU KARA, VADAYAR VILLAGE,
VAIKOM TALUK, THALAYOLAPARAMBU P.O, KOTTAYAM,,
PIN - 686605
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR
HEARING ON 31.07.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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SATHISH NINAN & P. KRISHNA KUMAR, JJ.
= = = = = = = = = = = = = = = = = =
F.A.O.No.85 of 2025
= = = = = = = = = = = = = = = = = =
Dated this the 31st day of July, 2025
JUDGMENT
Sathish Ninan, J.
The order of the Additional District Court, Kottayam
refusing to restore an appeal that was dismissed for
default, is under challenge in this appeal.
2. The appellants are the plaintiffs in a suit for
fixation of boundary, recovery of possession and other
reliefs. The suit was dismissed by the trial court against
which the appeal was filed. On 06.04.2024, when the appeal
was posted for hearing, since there was no representation,
the appeal was dismissed for default. Though the appellants
sought for restoration of the appeal, it was declined.
3. We have heard the learned counsel on either side.
4. The appellants are the plaintiffs in the suit for
fixation of boundary, recovery of possession and other
reliefs. The suit was originally dismissed by the trial
court on 25.01.2008. On appeal by the plaintiffs as
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A.S.No.113 of 2008, the decree was set aside and the suit
was remanded back. Thereafter, the trial court again
dismissed the suit on 25.09.2012. On appeal by the
plaintiffs as A.S.No.143 of 2013, the appellate court again
set aside the decree and judgment and remanded the suit.
This was again followed by the dismissal of the suit by the
trial court. The appeal, A.S.No.108 of 2019 was filed
challenging the same.
5. In A.S.No.108 of 2019, the plaintiffs-appellants
had filed an application in terms of Order XXIII Rule 1(3)
of CPC, seeking permission to withdraw the suit with liberty
to file a fresh suit. As per order dated 04.04.2024, the
said application was dismissed and the appeal was posted to
06.04.2024 for hearing. On the said date, there was no
representation for the appellants.
6. According to the appellants, the fact that after the
dismissal of the application under Order XXIII on
04.04.2024, the appeal was posted to 06.04.2024, was not
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noticed by the clerk. This resulted in the failure of
representation on 06.04.2024.
7. The appellate court noticed that there were
earlier rounds of remands on appeals by the plaintiffs. It
was noticed that there were five Commissioner's reports in
the case. It was also noticed that, realising some mistake
in the plaint the appellants sought to withdraw the suit
with liberty, which was declined by the Court. The court was
of the opinion that, in the circumstances, the non-
appearance on 06.04.2024, cannot be said to be bonafide.
8. The very fact that the trial court's decree was
interfered by the appellate court on two occasions earlier
and the suit was remanded, cannot be a circumstance against
the plaintiff. The order of remand on setting aside the
decree of dismissal of the suit can be viewed as something
in favour of the appellants. It only suggests that the
appellate court had found that there is something to be
considered in the suit. The appellants are the plaintiffs in
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the suit. Normally, they would not gain by getting their
suit dismissed for their non-appearance. In fact, they are
taking a big risk. Evidently, the application seeking
permission to withdraw the suit with liberty was dismissed
on 04.04.2024 and the appeal was posted on 06.04.2024. The
contention of the appellants that the clerk omitted to note
the posting of the case on the very succeeding date, cannot
be totally brushed aside. As noted above, the appellants
would not benefit by their non-appearance. After having
fought the litigation since the year 2003 onwards, it may
not be proper to have the appellants-plaintiffs thrown out
from the litigation on default. We deem it appropriate that
an opportunity be granted to the appellants to have the
appeal heard and to invite a judgment on merits. The
inconvenience caused to the respondent can be compensated by
way of costs.
9. Resultantly, the appeal is disposed of as
hereunder:
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(i) The order impugned will stand set aside and the
appeal will stand restored back to file on condition
that the appellants pay an amounts of Rs.5,000/- as
costs to the counsel appearing for the respondent
before this Court, within a period of 10 days from
today (31.07.2025).
(ii) On default in payment of costs as above, the
appeal will stand dismissed affirming the impugned
order.
10. Parties to appear before the appellate court on
20.08.2025. Every endavour may be made by the Court to have
the appeal disposed of within a period of three months.
For verifying compliance, post on 12.08.2025.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P. KRISHNA KUMAR
JUDGE
yd
