IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 28TH JULY 2009 / 6TH SRAVANA 1931 FAO.No. 215 of 2005() --------------------- AGAINST THE ORDER DATED 05/04/2005 IN IA 2137/2004. IN OS.216/2001 of ADDL.SUB COURT, KOCHI .................... APPELLANT/PETITIONER IN IA/PLAINTIFF: -------------------- ALEX C.JOSEPH, S/O.C.A.JOSEPH, CHEKKATTU HOUSE, THUDIYOOR P.O., THIRUVALLA, REP. BY POWER OF ATTORNEY HOLDER, ABRAHAM C. JOSEPH, S/O.C.A.JOSEPH, CHEKKATTU HOUSE, THELLIYOOR VILLAGE, MALLAPPALLY TALUK, PATHANAMTHITTA. BY ADV. SRI.P.JACOB VARGHESE, SENIOR ADVOCATE SMT.V.A.GANGUJA SRI.V.MANOJ KUMAR SRI.VIVEK VARGHESE P.J. RESPONDENT(S): --------------- 1. P.C.CHERIAN, S/O.LATE C.CHERIAN, PADINJARETHALAKKAL, TOWER ROAD, OPP. FORT KOCHI POLICE STATION, KOCHI-682 001. 2. SUJA MARIAM MATHEW, D/O.LATE C.CHERIAN, FLAT NO. 128, BLOCK NO.5, CHAKKOLAS HABITAT, THEVARA, KOCHI-682 013. ADV. SRI.N.HARIDAS FOR R1 & R2 SRI.H.SUNDEEP FOR R1 & R2 SRI.P.N.SASIDHARAN FOR R1 & R2 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 28/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. -------------------------------------------------------- FAO 215 OF 2005 -------------------------------------------------------- Dated 28th July 2009 Judgment BHAVADASAN, J. This appeal is directed against the order passed in IA No.2137/04 in OS No.216/01, whereby an application filed by the plaintiff for the restoration of the suit was dismissed by the court below. 2. The suit was one for recovery of money to the tune of Rs.42,42,500/-. The suit was initially posted on 03.09.03. On that day, the plaintiff could not appear and the suit was dismissed for default. Immediately, the plaintiff filed an application for restoration of suit and it was allowed on payment of Rs.1000/- towards costs. The suit was again listed on 2.11.2004. On that day also, the plaintiff could not appear and the suit was dismissed. Again, he filed an application praying for restoration of the suit. That application was resisted by the respondents, pointing out that on an earlier occasion also, the suit was listed for trial and it was dismissed for default for the FAO 215/05 2 absence of the plaintiff. The suit was restored on the application filed by the plaintiff and when it was listed for trial on the second occasion also, the plaintiff was absent. Therefore, it was pointed out that the plaintiff was only interested in dragging on the matter, causing injury to the defendants. 3. In the IA, the court below had PW1 examined and on the basis of the contentions raised before it, the court below came to a conclusion that no sufficient and reasonable ground is made out by the plaintiff and dismissed the IA. The said order is assailed. 4. According to the learned counsel for the plaintiff, the absence of the plaintiff on 2.11.2004 was due to reasons beyond the control of the plaintiff. On going through the order, it can be seen that a number of opportunities were given to the plaintiff to prosecute the suit, but he did not appear before the court below on the dates of posting. Whatever that be, the fact remains that the suit is one for money and that the plaintiff has paid the requisite court fee. It is difficult for one to believe that he would deliberately absent himself from the court, inviting FAO 215/05 3 dismissal of the suit on default. One may remember that once a suit is dismissed for default, the plaintiff has no right of appeal and another suit on the same cause of action is also barred. The only remedy is to get the suit restored. At any rate, any injury caused to the respondents can be compensated by awarding costs. It is felt that in the facts and circumstances, the plaintiff should be given one more opportunity to have his case tried on merits. Accordingly, the appeal is allowed. The impugned order is set aside and the suit is restored to file on condition that the plaintiff pays Rs.5,000/- (Rupees Five Thousand only) to the counsel for the respondents or deposits the said amount before the court below, within one month from today, failing which, this appeal shall stand dismissed. P.R.RAMAN, JUDGE P.BHAVADASAN, JUDGE An amount of Rs.5,000/- has been paid as cost by the counsel for the appellant to the counsel for the respondents, within the stipulated time as directed in the judgment vide memo c.f. 5657/09 dated 26.08.2009. Sd/-Registrar (Judicial) FAO 215/05 4 FAO 215/05 5