IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 10TH MARCH 2010 / 19TH PHALGUNA 1931 FAO.No. 304 of 2009() --------------------- AGAINST THE ORDER DATED 17/01/2008 IN IA 493/07 IN OP(INDIGENT).32/2002 of SUB COURT, THIRUVALLA .................... APPELLANTS: PETITIONERS/PLAINTIFFS ------------------------------- 1. K. PRASAD, AGED 48 YEARS, PRASAD ACADEMY, KOOTHUNDAYIL DEVI PRASADAM HOUSE, NIRANAM WEST MURI, NIRANAM VILLAGE, THIRUVALLA TALUK. 2. LATHA PRASAD, AGED 35 YEARS, W/O. K. PRASAD,PRASAD ACADEMY, KOOTHUNDAYIL DEVI PRASADAM HOUSE,NIRANAM WEST MURI, NIRANAM VILLAGE,THIRUVALLA TALUK. BY ADV. MR. P.HARIDAS RESPONDENT(S): COUNTER PETITIONERS/DEFENDANTS ---------------------------------- 1. GEORGE KUTTY, AGED 65 YEARS, SANKARAMANGALAM HOUSE, PALIAKARA MURI, THIRUVALLA VILLAGE, THIRUVALLA TALUK. 2. MARY VARKEY, AGED 61 YEARS, S/O. GEORGE VARKEY,SANKARAMANGALAM HOUSE, PALIAKARA MURI,THIRUVALLA VILLAGE,THIRUVALLA TALUK. 3. PETER M. SAMUEL, S/O. SAMUEL, MULAMBATTU HOUSE, VAZHUVELY, MAVELIKKARA. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 10/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: FAO.304/09 ORDER ON I.A.4189 OF 2009 IN LAA.304 OF 2009 DISMISSED. SD/- PIUS C. KURIAKOSE, JUDGE. SD/- C.K. ABDUL REHIM, JUDGE. 10.3.2010 okb /True copy/ P.A. to Judge PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ---------------------------------- F.A.O. No.304 of 2009 ---------------------------------- Dated this the 10th day of March, 2010 J U D G M E N T ---------------------- Pius C.Kuriakose,J. Even though notices have been served on respondents, they have not entered appearance at all to resist the prayers of the appeal. Under challenge in this appeal is the order passed by the Subordinate Judge dismissing the application filed by the petitioner for restoration of the suit which was dismissed for default. 2. We have heard submissions of Sri.P. Haridas, learned counsel for the appellants/petitioners and we have scanned the impugned order. We notice that the learned Subordinate Judge was not at all convinced by the explanation offered by the appellant for condonation of his absence on the date when the suit was posted for trial and was ultimately dismissed for default. We are not persuaded to hold that the reasons stated by the learned Sub Judge for dismissing the application are bad. However we feel that in this case where the appellants' suit was not adjudicated on FAO.304/09 2 merits, appellants can be granted an opportunity but only on very stringent terms. Accordingly, we are inclined to allow the appeal on terms. The result is that the order under appeal is set aside. I.A.493/2007 in OP(indigent).No.32/2002 will stand allowed on condition that the appellants pay a sum of Rs.10,000/- (Rupees Ten thousand only) to the Kerala High Court Legal Services Committee on or before 31.3.2010 and produce receipt before the court below. If payment is not made the impugned order will stand confirmed and FAO will stand dismissed. Once the court below notices the receipt against payment of the above amount the judgment becomes operative. The court below will post the OP for enquiry. PIUS C.KURIAKOSE, JUDGE. C.K.ABDUL REHIM, JUDGE. okb