IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 4TH AUGUST 2009 / 13TH SRAVANA 1931 FAO.No. 170 of 2008() --------------------- AGAINST THE ORDER DATED 24/09/2007 IN IA,678/2007 IN OS.439/1999 of PRINCIPAL SUB COURT, PALAKKAD .................... APPELLANT/PETITIONER PLAINTIFF ------------- LILLY PUSHPAN, W/O.HRIDYASWAMY, PAZHANIYAR PALAYAM, KOZHINJAMPARA VILLAGE, CHITTUR TALUK, PALAKKAD DIST. BY ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE SRI.S.SUJIN RESPONDENT(S): RESPONDENTS/ DEFENDANTS -------------------- 1. THANKAMMA, W/O.SUNDARAN, KULUKKUPPARA, KOZHINJAMPARA VILLAGE, CHITTUR TALUK, PALAKKAD DIST. 2. GURUVAYOORAPPAN, S/O.SUNDARAN, KULUKKUPARA, KOZHINJAMPARA VILLAGE, CHITTUR TALUK, 3. SAJINA, S/O.SUNDARAN, KULUKKUPARA, KOZHINJAMPARA VILLAGE, CHITTUR TALUK, PALAKKAD DIST. 4. SANTHOSH, S/O.SUNDARAN, KULUKKUPARA, KOZHINJAMPARA VILLAGE, CHITTUR TALUK, PALAKKAD DIST. BY ADV. SRI.SAJAN VARGHEESE K. FOR R1,3&4 SRI.LIJU. M.P FOR R1,3 & 4 BY ADV. SRI.T.M.SUNIL FOR R2 THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 04/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. ------------------------------- F.A.O. No. 170 of 2008 ------------------------------- Dated this the 4th August, 2009 J U D G M E N T Raman, J. This appeal is against the order dismissing the application filed under Order IX Rule 9 of Code of Civil Procedure Code. The appellant is the plaintiff whose suit was dismissed for default for default of non-appearance. He filed an application later to restore the same and the ground urged for setting aside the order is that he was suffering from viral fever. Medical certificate was produced, but the doctor was not examined. The appellant also did not mount the box. Therefore, the court below dismissed the application. 2. Heard both sides. We find that the application filed by the appellant was not even opposed by the respondents by filing a counter affidavit in the matter. Hence, the appellant F.A.O.170/2008 2 was under the belief that there will not be any serious opposition and did not adduce any evidence. 3. Considering the factual situation, we find that this is a fit case where an opportunity should be granted to the appellant to contest the case on merits. However, it shall be done only on terms. Accordingly, we direct that in case the appellant pays/deposits an amount of Rs.1500/= by way of cost to the respondents within a period of one month, the appeal will stand allowed and the suit stands restored to file. In case, he defaults to pay the amount as aforesaid, the appeal will stand dismissed. The appeal is allowed as above. P.R.RAMAN, JUDGE P.BHAVADASAN , JUDGE. nj. Appellant has paid Rs.1500/= (Rupees One Thousand and five hundred only) as cost to the respondents through their counsel as per the direction in the judgment dated 04/08/2009 within the stipulated period vide memo c.f.5764/2009 dated 31/08/2009. Sd/- Registrar (Judicial)