IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 29TH OCTOBER 2009 / 7TH KARTHIKA 1931 FAO.No. 176 of 2009() --------------------- AGAINST THE ORDER IN IA.221/09 IN OS.184/2008 of SUB COURT, CHENGANNUR .................... APPELLANT -------------------- AJITH KUMAR M.R., AGED 39 YEARS S/O.RAMACHANDRAN NAIR, MANNADIKKAL HOUSE MAMPRA MURI, CHERIYANAD VILLAGE, CHENGANNUR TALUK BY ADV. SRI.N.ASHOK KUMAR RESPONDENT: --------------- ROSAMMA, W/O.BABU, MAMPRA MURI, MAMPRA PO, CHERIYANAD VILLAGE CHENGANNUR ADV. SRI.A.K.HARIDAS THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 29/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ``````````````````````````````````````````````````````` F.A.O. No. 176 of 2009 ``````````````````````````````````````````````````````` Dated this the 29th day of October, 2009 J U D G M E N T Joseph, J. The appeal is filed against an order passed under Order 9 Rule 9 C.P.C. for restoration of the suit, which was dismissed for default on 21-02-2009. The court below has rejected the application on the ground that there is no affidavit filed by the plaintiff. The court below has referred to Order 9 Rule 9 CPC to arrive at the finding that the law contemplates an affidavit by the plaintiff himself and not by the counsel and on that basis finding it to be defect in and not maintainable. 2. We heard learned counsel for the appellant and learned counsel for the respondent. 3. Learned counsel for the appellant would contend that the appellant had filed an application for removal of the case from the list on account of the fact that the appellant was abroad. Apparently, this application was rejected and actually the appellant was abroad and he could not attend. There is an affidavit filed by FAO.176/2009 : 2 : the counsel. It is not a case where there is no affidavit pointing out the reasons for the non-appearance. Of course, the request must make out a case of sufficient reasons. We feel that the reasons given by the appellant through the affidavit filed by the counsel cannot be rejected. In such matters, we cannot take a technical view and we feel that the substantial interest of justice must prevail and a decision on merits can be delivered. In the circumstances, we feel that the appeal is to be allowed on terms. Accordingly, the appeal is allowed, the impugned order is set aside and the application will stand allowed on condition that the appellant will pay Rs.2,000/-(Rupees two thousand only) as cost to the respondent and produce a memo to that effect within one month from today. Sd/- (K.M.JOSEPH, JUDGE) Sd/- (M.L.JOSEPH FRANCIS, JUDGE) aks Counsel for the appellant has paid Rs.2,000/- (Rupees two thousand only) towards cost to the counsel for the respondent within the stipulated time in compliance of the direction contained in the judgment dated 29/10/2009 in FAO.176/2009 vide memo cf 7239/2009 dated 03/11/2009. Sd/- Registrar (Judicial)