IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 18TH AUGUST 2009 / 27TH SRAVANA 1931 FAO.No. 253 of 2007() --------------------- AGAINST THE ORDER DATED 30/05/2007 IN IA 1084/06 IN OS.24/2004 of SUB COURT, HOSDRUG .................... APPELLANT/PETITIONER/PLAINTIFF -------------------------------------------------- N.E.THOMAS, AGED 70 YEARS, S/O.ESTHAPPAN, CHRISTIAN, GOVERNMENT CONTRACTOR, RESIDING AT NADUVILE THEKKILAKATHIL, KOTTODY, KALLAR VILLAGE OF HOSDURG TALUK. BY ADV. SRI.JOSE J.MATHAIKAL RESPONDENT(S): RESPONDENTS/DEFENDANTS ------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER, ROADS AND BRIDGES, NORTH CIRCLE, KOZHIKODE. 3. THE SUPERINTENDING ENGINEER, P.W.D. ROADS AND BRIDGES, NORTH CIRCLE, KOZHIKODE. 4. THE EXECUTIVE ENGINEER, ROADS AND BRIDGES DIVISION, KASARAGOD. GOVERNMENT PLEADER FOR R.1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 18/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. -------------------------------------------------------- FAO 253 OF 2007 -------------------------------------------------------- Dated 18th August 2009 Judgment BHAVADASAN, J. This appeal is directed against the order dated 30.05.2007 by which IA No.1084/06 in OS No.24/2004 for restoration of the suit was dismissed for default by the court below. 2. The suit was one for money. The plaintiff was a Government Contractor, who was undertaking contract works for the defendants. Since there was no representation on behalf of the plaintiff, the suit was dismissed for default on 2.2.2006. It was noticed by the court below that there was no application for adjournment of the case. 3. The suit was restored to file and again it was posted in the list. On the second occasion also, the plaintiff was absent and there was no representation on his behalf. Again the suit was dismissed for default on 25.09.2006. Then, IA No.1084/06 was filed by the plaintiff for restoring the suit to file. The plaintiff pointed out in the application that he was laid up due to bleeding FAO 253/07 2 and he was advised to take rest by the doctor and hence he could not appear on the date on which the case was posted. His telephone was not functioning and hence he could not inform his Advocate also. He has produced Ext.A1 certificate in support of his claim. The court below declined to accept the said certificate on the ground that the doctor was not examined and that the certificate was not dated. 4. As already noted, the suit is one for money, claiming an amount of Rs.15,83,089/-. It is true, the suit was dismissed for default on an earlier occasion also. The plaintiff had produced Ext.A1 medical certificate, which would show that he was suffering from bleeding and was advised to take complete rest. It is also true that the doctor was not examined. But, there was no reason to doubt the genuineness of Ext.A1 document. The plaintiff had examined PW1 and had proved his case. It must be noticed that when the suit was dismissed for default, there is no appeal and that he cannot file another suit on the same cause of action. It is difficult to believe that the plaintiff would have taken the risk of deliberately absenting himself from the court. There is FAO 253/07 3 no reason to disbelieve his case that he was ill and was advised to take rest and therefore, he could not appear before the court on the appointed day. In the circumstances, the court below ought to have given an opportunity to the plaintiff to have his case considered on merits. However, the fact remains that the suit was dismissed for default on an earlier occasion also. 5. Considering the facts and circumstances of the case, we feel that an opportunity should be given to the plaintiff to establish his case. In the result, the appeal is allowed. The impugned order is set aside on condition that the plaintiff pays an amount of Rs.2,500/- (Rupees Two Thousand Five Hundred only) to the counsel for the defendants within one month from today. If the amount is not paid as directed above, the appeal shall stand dismissed. The parties shall appear before the court below on 22.09.2009. P.R.RAMAN, JUDGE P.BHAVADASAN, JUDGE FAO 253/07 4 sta FAO 253/07 5