IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 9TH SEPTEMBER 2010 / 18TH BHADRA 1932 FAO.No. 58 of 2010() --------------------------- AGAINST THE ORDER DATED 18/07/2007 IN IA.205/2007 IN OS.148/2004 of PRINCIPAL SUB COURT,ATTINGAL .................... APPELLANTS (S): PETITIONER/PLAINTIFF ----------------------------------------------------------- - SAINUDEEN,S/T.MUHAMMED KASIM,KADUVAYIL VEEDU, THOTTAKKADU DESOM, KARAVARAM VILLAGE, REP.BY SABEENA BEGUM, AGED 42 YEARS, D/O.MOHAMMED ABDULLA KADUVAYIL VEEDU, KARAVARAM, THOTTAKKADU, KALLAMBALAM, THIRUVANATHAPURAM. BY ADV. SRI.M.DINESH RESPONDENT(S): COUNTER PETITIONERS/DEFENDANTS ----------------------------------------------------------------------------------- 1. FAMI. S/O.MOHAMMED ABDUL KARIM. MADAYIL THEKKATHIL VEEDU, EDAVA DESOM, EDAVA VILLAGE, 2. YASHIN FAMI,. S/O.FAMI,MADAYIL THEKKATHIL VEEDU, EDAVA DESOM, EDAVA VILLAGE, 3. SHIYON FEMI, S/O.MOHAMMED FAMI,MADAYIL THEKKATHIL VEEDU, EDAVA DESOM, EDAVA VILLAGE, 4. ZIYA FEMI, D/O.MOHAMMED FAMI, MADYIL THEKKATHIL VEEDU, EDAVA DESOM EDAVA VILLAGE, R1 BY ADVS. SRI.S.M.PREM, SMT.K.P.SANTHI, SRI.P.K.NIJOY, SMT.NISHA G.THARAMAL, SRI.NIYAS ASALAM. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 09/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss THOTTATHIL B.RADHAKRISHNAN & P. BHAVADASAN, JJ. ------------------------------------------- C.M.Appln.No.417 OF 2010 & F.A.O.No.58 OF 2010 ------------------------------------------- Dated this the 9th day of September, 2010 JUDGMENT Thottathil B.Radhakrishnan, J. Respondents appear through counsel. Service complete. This appeal is by the plaintiff. He is represented by his wife who the power of attorney holder. The suit for recovery of an amount of Rs.2,50,000/- filed in 2004 was dismissed for default. Thereafter, an application to restore that suit was filed and that was also dismissed for default. It is stated that yet another application for review of that order was filed and that resulted in the enormous delay of 818 days in filing this appeal. The power of attorney holder of the plaintiff has sworn to an affidavit stating that the plaintiff was bonafide prosecuting the matter before the court below and he was away in Bombay on a temporary job and has executed the power of attorney in favour FAO.58/10 2 of his wife for realisation of money allegedly due under a cheque issued by the deceased mother of the respondents defendants. Taking the overall facts and circumstances into consideration, we are satisfied that the plaintiff has shown sufficient cause for relief leading to the restoration of the suit. The plaintiff had been bonafide prosecuting the matter before the court below and has shown sufficient cause for non-appearance and for not filing this appeal in time. Under such circumstances, we allow this C.M.Application and FAO on condition that the appellant pays the respondents an amount of Rs.5,000/- as costs payable to the counsel appearing for the respondents herein. If such payment is made within a period of three weeks from now, the impugned order will stand set aside and I.A.No.205/07 in O.S.No.148/04 on the file of the Sub Court, Attingal will stand allowed and the suit will stand restored for further consideration in accordance with law. The parties are directed to appear before the court below FAO.58/10 3 on 1.10.2010 to mark their appearance. The C.M.Application and the appeal are ordered accordingly. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- P.BHAVADASAN, Judge. kkb.14/09. Certified that appellant has paid Rs.5,000/- (Rupees five thousand only) as cost to the counsel for the respondents in compliance of the direction contained in the judgment dated 09/09/2010 in F.A.O.58/2010 vide memo c.f 6079/2010. Sd/- Registrar (Judicial).