IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 94 of 2006()
1. MOIDEENKUTTY @ BAPPU,
... Petitioner
Vs
1. MUHAMMED @ VAPPUTTY HAJI, S/O.VAPPU,
... Respondent
2. KADEEJA, W/O. MUHAMMED,
For Petitioner :SRI.D.ANIL KUMAR
For Respondent :SRI.SANTHEEP ANKARATH
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :10/06/2009
O R D E R
P.R.RAMAN & P.BHAVADASAN, JJ.
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F.A.O.No.94 OF 2006
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Dated this the 10th June, 2009
J U D G M E N T
Raman, J.
This is an appeal by the plaintiff against the order in
I.A.No.917 of 2005 in O.S.No.118 of 1999, on the file of Sub
Court, Ottappalam, dismissing the application for restoration of
the suit, which was dismissed for defult.
2. The suit was one for return of advance money
said to have been paid for sale of the plaint schedule property.
On 19.5.2005, when the case stood posted, the plaintiff remained
absent, there was no representation also, and the suit was
dismissed for default. Thereafter, he filed the present application
interalia contending that he could not attend the court on the
appointed day, as he had to go to the hospital since he fell ill.
The defendant resisted the application by contending that there is
no bona fides in the petition and the reasons given are false.
F.A.O.No.94 of 2006
2
Though matter was posted for evidence, no evidence was
adduced. In the circumstances, the court below dismissed the
application, against which this appeal is filed.
3. We have heard the parties. In so far as the
application for restoration is not supported by any document and
in the absence of any oral evidence in support thereof, we cannot
find fault with the court below for dismissing the application.
4. However, we have perused the copy of the
affidavit filed in support of the application for restoration. We
find that the case was posted on 2.4.2005 on which day it was
adjourned on the request of the counsel for the plaintiff, since the
plaintiff was not keeping well. The court adjourned the case to
19.5.2005, and as there was no representation on that day also,
it was dismissed for default. Therefore, what was the reason for
the absence on 19.5.2005 alone is relevant. The reasons stated
for the absence on 19.5.2005 was that he has shifted his
residence and letter sent by the lawyer was not received, since
the change of address probably was not intimated to the counsel.
F.A.O.No.94 of 2006
3
This reason as put forth in the affidavit has never been
considered by the court below. In the circumstances, we feel
that it is a fit case where the application for restoration could be
allowed on terms.
5. Accordingly, we allow the appeal, set aside the
impugned order and restore the suit to file, however on condition
that the appellant shall pay an amount of Rs.2000/= to the
respondents through counsel before the court below, within a
period of three weeks from today, failing which the appeal shall
dismissed. On payment of the said amount, the suit will be
proceeded with and decided on merits.
The parties shall appear before the court below on
14.9.2009.
P.R.RAMAN, JUDGE
P.BHAVADASAN , JUDGE.
nj.