Kerala High Court
Densil De-Souza vs Telma Masil Netto on 24 March, 2025
FAO NO. 133 OF 2024
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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
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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
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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
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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 1 st 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
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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 1 st
respondent which had been decreed as early as 2001, the
benefit of which is attempted to be denied to the 1 st 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
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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
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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
