R. V. RAVEENDRAN, J.

( 1 ) LEAVE granted. Mr. A. Raghunath, learned counsel accepts notice for the sole respondent. Heard by consent.

( 2 ) THE appellants were the defendants in a suit for declaration and mandatory injunction. Having lost before the trial court and the first appellate court, the appellants filed a second appeal before the High Court of Kerala on 6. 2. 2005. The appeal was admitted and an interim stay of execution was granted in the said appeal on 1. 6. 2005. The pending second appeal was referred to the Lok Adalat organized by the Kerala High Court Legal services Committee on 25. 5. 2007. Before the lok Adalat, parties apparently arrived at a tentative settlement. The Lok Adalat consisting of two retired Judges of the High court purported to pass the following 'award' dated 25. 5. 2007 in the appeal : award

"counsel for the parties and the appellants and respondent present. The parties have settled the dispute and agreed to file a memorandum of settlement before the High Court to obtain orders for disposal of this appeal and for refund of court fee. A plan of the property is produced by the appellant and it is received. The plan used will form part of this order. The appellant will vacate the buildings in plot A to the respondent on or before 31st July, 2007. On such surrender, plot B will belong to the appellant and. . . . . . . . . . . . . A compromise deed to this effect will be drawn by the parties and file before the court. " post before the court on or before 31st july, 2007"

[emphasis supplied]

( 3 ) THE appellants allege that the parties could not finalise the terms of settlement as it was found that there was no access to the portion to which they had to move, and therefore no compromise petition was drawn up or filed. As the settlement was not reported, the High court, by order dated 10. 4. 2008 made a second reference to the Lok Adalat. The parties and counsel again appeared before lok Adalat. Further negotiations were unsuccessful and the Lok Adalat sent the following failure report dated 3. 4. 2008 to the court:

"we have discussed the matter with the counsel and their parties and considering the nature of demand made by the appellants, there is no chance of settlement. "

[emphasis supplied]

( 4 ) THE second appeal was thereafter listed for the final hearing on 19. 8. 2008 before a learned Single Judge. When the matter reached hearing in the post-lunch session, an advocate attached to the office of the appellants' counsel submitted that the appeal was to be argued by his colleague Mrs. Sarita, that due to personal inconvenience she could not be present during that session, and that therefore the matter may be adjourned to the next day. The learned Single Judge rejected the request and dismissed the appeal. The operative portion of the order dated 19. 8. 2008 is extracted below : "i see no reason why any further adjournment is to be granted in the appeal of 2005 when the parties are willfully abstaining from arriving at any settlement despite an award passed at the Adalat on agreement. In the result, I dismiss this appeal for default. " (emphasis supplied)

( 5 ) THE very next day, that is on 20. 8. 2008, an application was filed for restoration of the appeal supported by the affidavit of the counsel (Mrs. Saritha) giving the following reason for her absence at the post- lunch session on 19. 8. 2008 : "i am an advocate attached to the office of the counsel for the petitioner. I was entrusted to argue the aforementioned second appeal and I was prepared for the same since the matter was listed. The case was taken up as item no. 504 in Court I-C in the afternoon session on 19. 8. 2008. I was present in the court in the forenoon session and unfortunately I developed severe ear pain and had to leave the court. I had entrusted my colleague to appear before the Hon'ble Court and requested a day's adjournment on account of this personal inconvenience and he had submitted the same. " the said application was dismiss