IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 24TH JULY 2009 / 2ND SRAVANA 1931 FAO.No. 298 of 2007() --------------------- AGAINST THE ORDER DATED 20/06/2007 IN IA.1590/2006 IN OS.162/2001 of SUB COURT, OTTAPPALAM .................... APPELLANT/PETITIONER/PLAINTIFF ---------------------------------------- M/S.SURESH INDUSTRIES BY PROPRIETOR S.SURESH KUMAR, 17/16 VIJAYA COMPLEX, VEERAPPA STREET, SOUCARPET, MADRAS - 79. BY ADV. SRI.SANTHEEP ANKARATH RESPONDENTS: RESPONDENTS/DEFENDANTS ------------------------------------- 1. GRACY JOY, W/O.JOY, KULANGARA HOUSE, AGALI, MANNARKKAD TALUK. 2. K.P.THOMAS, S/O.POULOSE, KULANGARA HOUSE, AGALI, MANNARKKAD TALUK. ADV. SRI.R.SREEHARI FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 24.7.2009 THE COURT ON THE SAME DAY, DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. = = = = = = = = = = = = = = = = = = = F.A.O. 298 OF 2007 = = = = = = = = = = = = = DATED THIS, THE 24TH DAY OF JULY, 2009. J U D G M E N T Raman, J. An application filed under Order IX Rule 9 of the Code of Civil Procedure filed by the plaintiff to set aside the order of dismissal of the suit and to restore the same to file was dismissed by the court below, against which the plaintiff has preferred this appeal. 2. When the case was listed for trial on 5.7.2006 the plaintiff was not present. Counsel submitted no instruction and the suit was dismissed. Subsequently, the petitioner applied for restoration producing a medical certificate. Curiously enough that Medical certificate is not seen marked in the case and no reference is also made to the same. A copy of the medical certificate issued by the doctor was shown to us by the learned counsel appearing for the appellant which shows that the appellant was suffering from fever from 3.7.2006 and was advised to take rest till 10.7.2006. True, the doctor was not examined. The appellant is a resident of Madras and he suffered illness while residing there. To insist for the examination of the doctor who treated him at Madras could only cause undue hardship. Further, if there are sufficient evidence on material to show that the reason F.A.O. 298/2007 2 put forth is not bereft of bona fides and taking into consideration the fact that the plaintiff has instituted the suit after paying court fee, normally one would not have think that he would have absented himself purposely. It is not as though the plaintiff has been absent on more than one occasion previously to draw an inference that he is not interested in prosecuting the suit. Taking into consideration the totality of the facts and circumstances of the case, we are of the view that the suit ought to have been restored to file after setting aside the exparte decree. Further, the application itself is filed within time. 3. In the circumstances, we allow this appeal, set aside the order of dismissal and restore the suit to file on condition that the appellant shall deposit an amount of Rs. 2,000/- (Rupees Two thousand only) before the court below within a period of one month towards cost to be paid to the defendants to be apportioned equally. The appeal is allowed as above. P.R. RAMAN, JUDGE P. BHAVADASAN, JUDGE. KNC/-