IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 15TH SEPTEMBER 2009 / 24TH BHADRA 1931 FAO.No. 242 of 2008() ----------------------------- AGAINST THE ORDER DATED 31/07/2008 IN IA 932/2008. IN OS.156/2006 of SUB COURT,ALAPPUZHA .................... APPELLANT/ PETITIONER/PLAINTIFF: ----------------------------------------------------- P.H.UMMESH, S/O.HARIHARAN, POZHICKAL HOUSE, KANICHUKULANGARA P.O., MARARIKULAM NORTH VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. BY ADV. SRI.JOHN BRITTO SRI.C.A.RAJEEV RESPONDENT(S): CR.PETITIONERS/DEFENDANTS: ------------------------------------------------------------------------- 1. KERALA STATE REPRESENTED BY THE DISTRICT COLLECTOR, ALAPPUZHA. 2. THE DEPUTY TAHSILDAR (RR), CHERTHALA, ALAPPUZHA. 3. THE VILLAGE OFFICER, MARARIKULAM NORTH VILLAGE, CHERTHALA. 4. KERALA KHADI RURAL INDUSTRIAL BOARD, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. BY SENIOR GOVERNMENT PLEADER SRI.K.B.RAMANAND. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 15/09/2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ------------------------------------------------------ F.A.O.No.242 of 2008 ---------------------------------------------- Dated, this the 15th day of September, 2009 J U D G M E N T K.M.Joseph, J. Appellant filed application under Order 9 Rule 9 of the Code of Civil Procedure to restore the suit which had been dismissed for default. The suit is filed as O.S.156/2006. On account of non-appearance plaintiff/appellant when the case is included on 21.2.2008 in the special list, the suit came to be dismissed. In the application filed by the appellant the appellant pointed out that he was laid up and he could not appear and give evidence. But, the suit was dismissed on account of his absence. Learned Sub Judge has found that the appellant has not cared to enter the box. It is stated that the doctor who issued the medical certificate was not examined. It is stated that the signature of the applicant in the medical certificate is dissimilar when compared to the signature in the affidavit dated 22.3.2008. It is also stated that whether there is a doctor in that name, whether he is practising in any FAO 242/2008 -2- hospital, on which date the certificate was issued etc are not stated. It is also stated inter alia that even for argument sake it was found that the appellant was laid up from 15.2.2008 the question arise what prevented him to inform about his illhealth to his Advocate from 15.2.2008 till F.N of 21.2.2008. It is also stated that he could have informed the Advocate over phone or through other male members of the family. It is also stated that simply because the respondent did not file counter is not sufficient. The genuineness of the certificate is doubted. No oral evidence is adduced. On this reasoning inter alia the trial court dismissed the application. 2. We heard the learned counsel for the appellant and learned Government Pleader for respondents 1 to 4. Learned counsel for the appellant would point out that it is a case where it is true that evidence was not produced. It is also to be noted that there is no counter affidavit filed by the respondent. 3. Appellant has produced medical certificate and filed the application with time. Learned Government Pleader would support the order. FAO 242/2008 -3- 4. The appellant has presented the application within the period of limitation. We note that the suit is of the year 2006. We feel that the appellant cannot be denied the opportunity to have the matter decided on merits. In such circumstances we take a lenient view and accept the contention of the appellant. The appeal is allowed and the impugned order is set aside. I.A.No.932/2008 stands allowed on condition that the appellant pays a sum of Rs.2,000/- (Rupees two thousand only) by way of cost to the learned Government Pleader who appears in this appeal and produce the memo within a period of one month from today. I.A.No.3966/2008 is closed. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS