IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 5TH OCTOBER 2009 / 13TH ASWINA 1931 FAO.No. 175 of 2009 ------------------------------------ AGAINST THE ORDER DATED 21/11/2008 IN IA 2841/08 IN OS.586/2006 of I ADDL.SUB COURT,ERNAKULAM .................... APPELLANT/PETITIONR/PLAINTIFF ------------------------------------------------- DR. GRACY ABRAHAM, AGED 50 W/O. ABRAHAM, PERINGATTU HOUSE, UDAYAMPEROOR, MANAKUNNAM VILLAGE, KANAYANNUR TALUK. BY ADV. SRI.ABRAHAM P.GEORGE RESPONDENT(S): RESPONDENT/DEFENDANT ----------------------------------------------------------------- K.P.FRANCIS S/O. PAULOSE KARUMINNIMYALIL HOUSE, MAMPUZHA DESOM KEECHERI VILLAGE, KANAYANNUR TALUK. BY ADV. SRI.V.M.SHYAM KUMAR THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 05/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. -------------------------------------------------- F.A.O. NO. 175 OF 2009 --------------------------------------------------- Dated this the 5th October, 2009 JUDGMENT K.M. Joseph, J. Appellant calls in question the order passed in I.A.No.2841/08 in OS No.586/06 on the file of the Sub Court, Ernakulam, filed for condonation of delay in filing the Application for restoration of the Suit dismissed for default, and the order passed in the Application for restoration of the suit, namely I.A. No.2842/08. 2. We heard the learned counsel for the appellant and also the learned counsel appearing on behalf of the respondent. 3. The Suit is one for specific performance. The Suit is of the year 2006. There are seventy days' delay in filing the Application. The case of the appellant is that she is a practising Gynecologist, that there was some talk of settlement, and that is why she could not appear on that day. The court below has FAO.NO.175/09 2 found that the busy schedule of the appellant in the profession cannot be a valid ground. 4. In matters of this nature, we feel that we can take a liberal view and permit a decision to be rendered on the merits of the matter. But, it cannot be an unconditional order. Accordingly, we allow the Appeal and set aside the impugned orders on condition that the appellant will pay Rs.3,000/= (Rupees Three Thousand) as costs to the respondent within one month from today and produce a memo before this Court to that effect within one month from today. If the appellant fails to pay the costs, we make it clear that the Appeal will stand dismissed. Sd/= K.M. JOSEPH, JUDGE Sd/= M. L. JOSEPH FRANCIS, JUDGE kbk. The appellant has paid Rs.3,000/=(Rupees Three thousand only) towards cost to the counsel for the respondent within the stipulated time in compliance of the direction contained in the judgment dated 5/10/2009 in F.A.O.175/09 vide memo c.f.7058/2009 dated 28/10/2009. Sd/= Registrar (Judicial) FAO.NO.175/09 3