IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 5TH AUGUST 2009 / 14TH SRAVANA 1931 FAO.No. 324 of 2007() --------------------- I.A. 2076/2006 IN OS.118/2001 OF SUB COURT, OTTAPPALAM .................... APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------------- ABDULLAKUTTY HAJI, AGED 58 YEARS, S/O.VARAMANGALATH CHERIYA VAPPU HAJI, PALLIPPURAM AMSOM AND DESOM,PATTAMBI, OTTAPALAM TALUK. BY ADV. SRI.SANTHEEP ANKARATH RESPONDENT(S): DEFENDANTS ------------------------------ --------------- 1. HAMZA, AGED 62 YEARS,S/O.VARAMANGALATH MOIDUTTY HAJI, PALLIPPURAM AMSOM AND DESOM OTTAPALAM TALUK. 2. AYISHA, AGED 57 YEARS, W/O. VARAMANGALATH HAMZA, PALLIPPURAM AMSOM AND DESOM, PATTAMBI, OTTAPALAM TALUK. ADV. SRI.E.R.VENKATESWARAN FOR R1,2 SRI.R.SREEHARI FOR R1,2 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 05/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 324 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of August, 2009. JUDGMENT Raman, J, Appellant is the plaintiff, who instituted the suit O.S. 118 of 2001 for specific performance of the contract alleged to have been entered into between the plaintiff and the defendants. The suit was dismissed for default for absence of the plaintiff on 24.8.2006. Later he filed an application for restoration after seeking setting aside of the order. The reason for his absence shown was that he was suffering from back pain and hyper tension. Though a medical certificate was produced, the doctor was not examined. Leave alone, even the plaintiff did not mount to the box. It is not as if the court below did not give him opportunities to prove the contentions raised in the application. The court below has observed that several times the matter was posted, but he did not turn up to adduce evidence. Merely because he has stated in his application that he was suffering from back pain and hyper tension, the question is as to whether he was prevented by FAO. 324/2007. 2 sufficient cause that will depend upon as to whether he was really suffering from back pain and hyper tension and if so, the gravity of the ailment. Therefore, this is a matter to be proved on evidence. In such a situation, the court below was constrained to dismiss the application, against which this appeal. 2. We have perused the order passed by the court below, and heard both sides. 3. Learned counsel appearing for the appellant strenuously contended and pleaded that one more opportunity may be given. Considering the fact that the appellant is the plaintiff, who has after incurring court fee has filed the suit, a lenient view can be taken in this matter. Accordingly, we allow this appeal and set aside the order passed by the court below so as to enable the appellant to adduce evidence in the application. The court below will consider the evidence and pass fresh orders. However, this order is subject to the condition that the appellant shall pay an amount of Rs.3000/- by way of costs to the respondent through counsel or deposit the same before the court FAO. 324/2007. 3 below within a period of one month from today, failing which, the appeal will stand dismissed. P.R. Raman, Judge P. Bhavadasan, Judge sb.