Sajith S/O Edathadan Sankara Narayanan v. Manoj S/O Kopppadan Ramakrishnan, Rajeswari W/O Pallipurath Rajan, Anandan S/O Valiparambl Ragavan, Soumya W/O Thandassery Santhosh, Rudra (minor) represented by mother Soumya, Kalabha (minor) represented by mother Soumya, Francis Jacob S/O Kudakkassery Devassya Chacko, Sandhya W/O Anandan, Abhirami (minor) D/O Anandan represented by Sandhya

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE V.G.ARUN`** ``` TUESDAY, THE 7[TH] DAY OF DECEMBER 2021 / 16TH AGRAHAYANA, 1943 ``` ``` CRP NO. 29 OF 2018 ``` ``` AGAINST THE ORDER/JUDGMENT IN AS 173/2010 OF DISTRICT COURT & ``` ## **`SESSIONS COURT,THRISSUR`** ``` OS 64/2008 OF PRINCIPAL SUB COURT,IRINJALAKUDA ``` ## **`REVISION PETITIONER/S/REVIEW PETITIONER:`** ## **`SAJITH`** ``` S/O.EDATHADAN SANKARA NARAYANAN,ALAGAPPA NAGAR DESOM, AMABALLUR VILLAGE,MUKUNDAPURAM TALUK, REPRESENTED BY MUKTHIYAR AGENT,MOHANAN, AGED 67 YEARS, S/O.KITTUNNY,AYYANCHIRA HOUSE, CHENGALOOR VILLAGE, DEESOM,MUKUNDAPURAM TALUK ``` ``` BY ADVS. SRI.M.R.VENUGOPAL SMT.DHANYA P.ASHOKAN ``` ## **`RESPONDENT/S:`** - **`1 MANOJ S/O.KOPPADAN RAMAKRISHNAN,AMBALLUR VILLAGE AND DESOM,MUKUNDAPURAM TALUK 680301`** - **`2 RAJESWARI W/O.PALLIPURATH RAJAN,AMABALLUR VILLAGE AND DESOM,MUKUNDAPURAM TALUK 680301`** - **`3 ANANDAN S/O.VALIPARAMBIL RAGHAVAN,VADAKKUMMURI DESOM, MUKUNDAPURAM TALUK 680301`** - **`4 SOUMYA W/O.THANDASSERY SANTHOSH, VELUPADAM POUND DESOM,VARANTHARAPPILLY VILLAGE, MUKUNDAPURAM TALUK,680303`** - **`5 RUDRA MINOR AGED 6 YEARS, D/O.SOUMYA, REPRESENTED BY MOTHER SOUMYA, W/O.THANDASSERY SANTHOSH,VELUPADAM POUND DESOM, VARANTHARAPPILLY VILLAGE,MUKUNDAPURAM TALUK 680303`** - **`6 KALABHA MINOR AGED 4 YEARS, D/O.SOUMYA, REPRESENTED BY MOTHERSOUMYA, W/O.THANDASSERY SANTHOSH,VELUPADAM POUND DESOM, VARANTHARAPPILLY VILLAGE,MUKUNDAPURAM TALUK 680303`** ``` CRP NO. 29 OF 2018 ``` ``` 2 ``` - **`7 FRANCIS JACOB S/O.KUDAKKASSERY DEVASSYA CHACKO,VELIKKAD DESOM, MUNOOR VILLAGE,PALAKKAD TALUK 678592`** - **`8 ADDLR8.SANDHYA AGED ABOUT 45 YEARS,W/O ANANDAN,VADAKKUMMURI DESOM,MUKUNDAPURAM TALUK-380301.`** - **`9 ADDL.R9.ABHIRAMI, AGED ABOUT 16 YEARS,D/O ANANDAN,VADAKKUMMURI DESOM,MUKUNDAPURAM TALUK-680301.REPRESENTED BY MOTHER SANDHYA AGED ABOUT`** - **`BY ADVS.`** - **`SRI.K.S.BHARATHAN SMT.R.RAJITHA SRI.SANTHOSH P.PODUVAL`** ``` THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRP NO. 29 OF 2018 ``` ``` 3 ``` ## **JUDGMENT Dated this the 7[th] day of December, 2021** The challenge in this revision petition is against dismissal of the review petition filed, assailing the order by which the appellate court dismissed on the premise that the appeal is not pressed. 2. The essential facts are that:- The petitioner is the first plaintiff and his father, the second plaintiff in O.S.No.64 of 2008 of the Sub Court, Irinjalakuda. The suit was filed, seeking to declare Document No’s 6577 of 2007 and 6578 of 2007 of Nellayi SRO as null and void and to restrain the defendants from trespassing upon the plaint schedule properties. Petitioner is employed abroad and he had authorised his father to contest the suit on his behalf. The suit was dismissed and the plaintiffs preferred appeal (A.S.No.173 of 2010) before the District Court, Thrissur. Pending the appeal, the second ``` CRP NO. 29 OF 2018 ``` ``` 4 ``` appellant/petitioner’s father, who was his Power of Attorney holder, died on 12.04.2014. Thereupon, petitioner’s mother and sister were impleaded as the legal representatives of the deceased second appellant. The additional appellants were not interested in proceeding with the appeal, since the main dispute is with respect to the petitioner’s property and consequently, the additional appellants informed the Counsel that they are not interested in proceeding with the appeal and the appeal got dismissed as not pressed. On coming to know about this development, petitioner filed an application for getting the appeal restored, pointing out that the appeal was withdrawn without his volition. That application, filed under Order 47 Rule 1 CPC, was dismissed the impugned order. 3. Heard, Adv. Dhanya.P.Ashokan, learned Counsel for the petitioner and M/s. Santhosh.P.Poduval. Adv. K.S.Bharathan, learned Counsel for the respondents. ``` CRP NO. 29 OF 2018 ``` ``` 5 ``` 4. Learned Counsel for the petitioner contended that the court below committed gross illegality by dismissing the appeal based on a representation made on behalf of two of the appellants. According to the learned Counsel, the appellate court was bound to ensure that the submission was being made on behalf of all the appellants. It is submitted that, the appeal ought to be restored when the original first plaintiff, who is the first appellant, pointed out that the appeal was not pressed without his knowledge and concert. 5. Drawing attention to the findings in the impugned order, it is submitted that the court below had rejected the application for restoration based on a decision of the PunjabHaryana High Court, which held that Order 9 Rule 9 of CPC is not applicable, when the appeal is dismissed. Learned Counsel relied on the decision of this Court in **Poyyakandathil Kannan v. State of Kerala and Others** **[2015 KHC 3682],** to contend that, even in the absence of a ``` CRP NO. 29 OF 2018 ``` ``` 6 ``` specific provision under the Code of Civil Procedure for restoration of an appeal dismissed as not pressed, the court is empowered to invoke its inherent power under Section 151 of CPC to render justice to the parties. Para 4 of the judgment, which is contextually relevant, is extracted hereunder:- “4. It is evident from the judgment delivered by the lower appellate court on 30.09.2010 that A.S.No.70 of 2004 was dismissed as not pressed in the light of the memo filed by the petitioner that he is not pressing the appeal. Within thirty days thereafter, the petitioner had filed I.A.No.1750 of 2010 to restore the appeal to file. That application was dismissed by order passed on 08.02.2011 on the short ground that as the appeal was dismissed as not pressed, there is no question of resotring the appeal to file. The order passed by the court below cannot in my opinion be sustained. Though the application was styled as one filed under Order IX R.9 of the Code of Civil Procedure, the appellate court should have in my opinion exercised the power conferred on it under S.151 of the Code of Civil Procedure to recall the judgment dismissing the appeal as not pressed. A court always has the power to recall an order which has the effect of perpetrating injustice on a party. From the pleadings and the materials ``` CRP NO. 29 OF 2018 ``` ``` 7 ``` on record it is evident that unless the order passed by the appellate court dismissing A.S.No.70 of 2004 as not pressed is set aside and the appeal restored to file, the petitioner will be left without no remedy”. Reference is made on the decision of the Hon’ble Supreme Court in **Jet Ply wood (P) Ltd and Another v. Madhukar Nowlakha and others [2006 KHC 419],** in which the propositions laid down by this Court in Poyyakandathil Kannan is reiterated. It is contended that merely because Order 47 Rule 1 of CPC was quoted, the appellate court should not have rejected the application leaving the petitioner remediless. 7. Learned Counsel for the respondent submitted that mere filing of an affidavit along with the application for restoring the appeal is not sufficient and it was incumbent upon the petitioner to have tendered evidence to prove that the appeal was withdrawn without his volition. The undisputed fact is that the petitioner is the first ``` CRP NO. 29 OF 2018 ``` ``` 8 ``` plaintiff and the suit, as also the appeal, was being contested by him seriously. For this purpose, petitioner had appointed his father, the second plaintiff/second appellant, as Power of Attorney holder. It is the additional appellants, impleaded on the death of the second appellant, who got the appeal dismissed as not pressed. The petitioner having brought this fact to the notice of the appellate court, the appeal ought to have been restored to file. As rightly pointed out by the learned Counsel for the petitioner, absence of a provision for restoring an appeal dismissed as withdrawn or misquoting of the provision, should not have deterred the appellate court from invoking its inherent jurisdiction under Section 151 of the Code of Civil Procedure. The procedure prescribed in the Code are meant to be hand maiden to justice. The endeavour of courts should always be to provide opportunity to contest the cases on merits, rather than non-suiting the parties on technicalities. For the aforementioned reasons, the Civil ``` CRP NO. 29 OF 2018 ``` ``` 9 ``` Revision Petition is allowed. The additional appellants having voluntarily withdrawn from the appeal, they are no longer necessary parties and the petitioner/first appellant can prosecute the appeal on merits. ## **`Sd/-`** ``` V.G.ARUN JUDGE ``` ``` RK ```