IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 16TH JUNE 2009 / 26TH JYAISHTA 1931 FAO.No. 151 of 2005() --------------------- AGAINST THE ORDER IN IA. 368 /2004 IN OS.306/1996 of ADL.SUB COURT, THALASSERY .................... APPELLANT/PETITIONER/PLAINTIFF: --------------------------------------------------- NADUVELIL EAPPAN, S/O. GEORGE, AGED 73 YEARS, NO OCCUPATION, KOOVERI AMSOM, CHAPPARAPPADAVU DESOM. BY ADV. SRI.M.RAMESH CHANDER RESPONDENT(S): RESPONDENTS/DEFENDANTS: ------------------------------------------------------------------- 1. KAITHAVELIL SOMAN, S/O.MADHAVAN NAIR, AGED 47 YEARS, AGRICULTURIST, ERAMAM AMSOM, MATHAMANGALAM DESOM. 2. KAITHAVALIL SASI, S/O.MADHAVAN NAIR, AGED 45 YEARS, -DO- -DO-. 3. KAITHAVELIL RAMANI, D/O. -DO-, AGED 38, -DO- -DO-. 4. KAITHAVELIL SAJAN, S/O. -DO-, AGED 36, AGRICULTURIST, -DO- -DO-. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 03/06/2009, THE COURT ON 16/06/2009 PASSED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 151 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of June, 2009. JUDGMENT Bhavadasan, J, The plaintiff in the suit, who had his interlocutory application for restoration of the suit dismissed, is the appellant. 2. The suit was one for specific performance of a contract. It is seen that the suit was listed to 8.1.2004. The appellant had filed a petition to amend the plaint and also permission to produce certain documents. They were dismissed on the same day itself. Later on the suit was dismissed for default. Plaintiff filed an application for restoration of the suit. It was opposed by the respondents pointing out that there were no bonafides in the claim made by the plaintiff and there is no justifiable cause to have restored the suit to file. The court below accepting the contention raised by the respondents and also pointing out that the plaintiff had other means to procure the documents sought to be produced by him, held that there was no bonafides in the petition and accordingly dismissed the same. The said order is assailed in this appeal. FAO. 151/2005. 2 3. It is not in dispute that the suit was initially listed for trial to 11.11.2003. It is seen from the records that on that date the petitioner was not ready to give evidence. He wanted to produce certain documents and wanted an adjournment. The suit was removed from the list, which was later listed to 8.1.2004. On the said date the case could not be taken up and it was adjourned to 14.1.2004. On that day, it appears that the plaintiff had filed an application as I.A. 130 of 2004 for seeking amendment of the plaint. He later filed I.A. 150 of 2004 to call for certain documents from another court. Unfortunately for the plaintiff the two applications were dismissed and the suit was also dismissed on the same day. 4. On going through the records, it could not be said that the plaintiff was not diligent in the conduct of the case. May be that he could have applied for certified copies of the documents, which he wanted to produce instead of praying that they may be called from another court. It is significant to notice that the court below had not come to the conclusion that the amendment sought for was unnecessary and had nothing to do with the issue involved in the suit. It is also true that on an earlier occasion an adjournment sought for was granted to the plaintiff. However, there is nothing to show that he is guilty of contumacious conduct or has been adopting tactics to unnecessarily delay decision in the suit. It is not possible FAO. 151/2005. 3 to understand as to how the court below could say that the plaintiff was shy of the suit being decided. 5. The court should decide the rights of the parties instead of dismissing the suit for default. At any rate, any harm caused to the defendant could have been easily compensated by the award of costs. It is difficult to believe that the plaintiff, who sues for specific performance would deliberately abstain from the court inviting risk of having the suit dismissed for default, especially when he had no right of appeal against the order dismissing the suit for default and also that he cannot file a subsequent suit on the same cause of action. It is not possible to accept the finding of the court below that the Interlocutory Application for amendment and the Interlocutory Application for production of documents were filed without any bonafides. At any rate, it is felt that an opportunity should be given to the plaintiff to have the suit restored to file and decide on merits. So also any loss or injury caused to the defendants can be compensated by awarding cost. In the result, this appeal allowed and the order I.A. 368 of 2004 in O.S. 306 of 1996 on the file of the Sub Court, Thalassery is set aside and the suit stands restored to file on condition that the appellant pays a sum of Rs.1500/- to the respondents within one month from today, failing which FAO. 151/2005. 4 this appeal will stand dismissed. In case the amount is paid and the suit stands restored to file, the court may make every endeavour to dispose of the suit as expeditiously as possible being a suit of the year 1996. P.R. Raman, Judge P. Bhavadasan, Judge sb.