IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.M.SHAFFIQUE WEDNESDAY, THE 30TH NOVEMBER 2011 / 9TH AGRAHAYANA 1933 FAO.No. 315 of 2010 ---------------------------- AGAINST THE ORDER DATED 19/08/2010 IN IA 1467/09 IN OS.23/2006 of SUB COURT,ATTINGAL .................... APPELLANT (S):PETITIONER/PLAINTIFF: ---------------------------------------------------------- MARY EDWARD, W/O.LATE B.C.EDWARD, TANK VIEW, KUNNUKUZHI, THIRUVANANTHAPURAM. BY ADV. SRI.J.JAYAKUMAR RESPONDENT(S): COUNTER PETITIONER/DEFENDANT: ------------------------------------------------------------------------------ SASIDHARAN NAIR, S/O.MADHAVAN PILLAI, MADHURIMA, POTHENCODE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT PIN - 695584. BY ADV. SRI.M.RAJASEKHARAN NAYAR SMT.K.N.RAJANI SMT.ANILA PETER THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 30/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & A. M. SHAFFIQUE, JJ. ------------------------------------------------------- F.A.O.No.315 of 2010 ----------------------------------------- Dated, this the 30th day of November, 2011 J U D G M E N T K.M.Joseph, J. Appellant calls in question the order passed by the Sub Court, Attingal in an application filed by the appellant for restoration of the suit which has been dismissed for default. The Sub Court dismissed the application saying that no evidence is adduced in support of the averments in the petition. Hence the application is dismissed as devoid of merit. According to the learned counsel for the appellant, appellant is aged 71 years and she was laid up due to viral fever. She filed I.A.No.1376/2009 for removing the case from the list. The respondent also filed petition for removing the case from the list because the respondent was also laid up due to viral fever. According to the appellant. therefore, the Sub Court posted the matter to 24.8.2009. On that day the Court dismissed the suit for default by saying that medical certificate is not produced. Both the petitions for removing the case from the list were dismissed. It is, thereafter, the present application is filed for restoration. FAO 315/2010 -2- 2. After having heard the learned counsel for the appellant and learned counsel for the respondent, we are of the view that the impugned order must be set aside, an opportunity must be given to the appellant for an adjudicated decision on merits. Accordingly, we allow the appeal and set aside the impugned order. The application filed by the appellant will stand allowed and the suit restored to file. (K.M.JOSEPH) JUDGE. (A. M. SHAFFIQUE) JUDGE. MS