OP(C)/4512/2012 of CHNDRAMATHY Vs VELAYUDHAN PILLAI on 31 December 2012

JUDGMENT

Petitioners are the appellants in A.S. No. 192 of 2007 of theIInd Additional District Court, Kollam, aggrieved by Ext.P2,order dated 12.04.2012 dismissing I.A. No. 1889 of 2011 forrestoration of I.A. No. 1186 of 2011 in A.S. No. 192 of 2007.

2. The suit was decreed in favour of the petitioners in partand aggrieved by that part of the decree against, they filed A.S.No. 192 of 2007. That appeal was dismissed for default on21.06.2011. On 18.07.2011, petitioners filed I.A. No. 1186 of2011 under Order XLI, Rule 19 of the Code of Civil Procedure.That application was dismissed on 26.09.2011 since AdvocateShri. S. Krishnakumar who filed that petition on behalf of thepetitioners had not filed his vakalath. The petitioners then filedI.A. No. 1889 of 2011 through Advocate Shri. A.N. Ratanakaranto restore I.A. No. 1189 of 2011. I.A No. 1889 of 2011 wasdismissed by Ext.P2, order which is under challenge.

3. It is submitted by the learned counsel that it was by amistake that another lawyer happened to file I.A No. 1186 of 2011 without a vakalath.

4. The learned Additional District Judge even in theabsence of any objection from the respondents opined that I.A.No. 1186 of 2011 cannot be restored as that the application isdefective as it is filed by an Advocate who had not filed vakalathfor the petitioners. The learned Additional District Judge alsoobserved that the proper remedy available to the petitioners wasto file fresh application to restore the appeal stating true factsand requesting to condone the delay.

5. Having heard the learned counsel, I am not inclined tothink that I should interfere with Ext.P2, order. The reason isthat I.A. No. 1186 of 2011 continued to be defective and thatdefect was not cured. If I.A. No. 1889 of 2011 is allowed, theresult is that a defective application - I.A. No.1186 of 2011 isrestored. Still, it continues to be defective. Moreover, dismissalof I.A. No. 1186 of 2011 is not for default but for the reason thatit was defective. Hence the question of restoration of I.A. No.1186 of 2011 does not arise.

6. The learned counsel requests that petitioners may begiven opportunity to file fresh application to restore the appealstating true facts and requesting to condone the delay. It ispointed out by the learned counsel that the learned AdditionalDistrict Judge has so observed in paragraph 4 of Ext.P2, order.

7. I must notice that the dismissal of I.A. No. 1889 of 2011

is not on merit but for the reason that I.A. No. 1186 of 2011 is adefective application. Moreover, the learned Additional DistrictJudge has observed that the proper remedy available to thepetitioners was to file fresh application to restore the appealstating the true facts and requesting to condone the delay (ifany).

8. In the light of the observation made by the learnedAdditional District Judge and since the question whether theappeal is to be re-admitted or not has not so far been decided bythe learned Additional District on merit, it is not necessary forthis court to grant any specific permission for the purpose.

Resultantly, in the light of the observation the learnedAdditional District Judge has made in Ext.P2, order in paragraph4 and the circumstance stated above, this original petition isdismissed without prejudice to other remedies available to thepetitioners.

smv

Sd/-

THOMAS P.JOSEPH, JUDGE

//True copy//

P.A. To Judge