IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 11TH JUNE 2010 / 21ST JYAISTHA 1932 FAO.NO. 232 OF 2009() --------------------- {OS.238/2001 OF THE ADDL.SUB COURT, KOLLAM} .................... APPELLANTS/PETITIONERS/PLAINTIFFS -------------------------------------------- 1. NIZAMUDEEN K.A, KUNNIKODU VEEDU, CHAVARA VILLAGE, KOLLAM. 2. K.SHANAVAS, OF -DO- BY ADV. SRI.K.SUBASH CHANDRA BOSE RESPONDENT(S): RESPONDENTS/DEFENDANTS ------------------------------------- 1. A.S.UMMER, ARAKKAL PARAMBIL VEEDU, THODUPUZHA VILLAGE, IDUKKI DIST. 2. ABDUL GAFOOR -DO- -DO- BY ADVS. SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN SRI.A.S.SABU SRI.RAFEEK. V.K. & SRI.PRATHAP PILLAI THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 11/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. --------------------------------------- F.A.O.No.232 of 2009 --------------------------------------- Dated this the 11th day of June, 2010 JUDGMENT THOTTATHIL B.RADHAKRISHNAN, J. Plaintiffs appeal against the dismissal of an application under Order IX Rule 9 of the Code of Civil Procedure filed seeking restoration of a suit for recovery of money. The plaintiffs are brothers. The first plaintiff is abroad. They sued the defendants for an amount of Rs.6,80,000/- due under a contract. The defendants had filed a suit before the Munsiff's Court, Karunagappally challenging that agreement as vitiated by coercion etc. That suit was transferred by the District Court to the Sub Court, to be tried and disposed of along with O.S.No.238/01, from which this appeal arises. F.A.O.No.232 of 2009 :: 2 :: The trial court dismissed both the suits for default, it is stated. 2. When the plaintiffs in O.S.No.238/01 filed I.A.No.1570/09 seeking restoration of the suit on the ground that the plaintiffs could not appear when the suit was listed for trial because the mother of the plaintiffs was seriously ill and was admitted in the Amritha Institute of Medical Sciences and Research Centre and the 2nd plaintiff was taking care of her since the first plaintiff was abroad, the defendants stated that the application for restoration is experimental and that there is nothing to show that the mother of the plaintiffs was admitted in the hospital. 3. The learned counsel for the appellants points out that the application for restoration was filed on 21.5.2009, the objections were filed on 16.6.2009 and the F.A.O.No.232 of 2009 :: 3 :: impugned order was passed on the very next posting date i.e. 22.6.2009, without affording opportunity for the plaintiffs to produce materials to show that their mother was hospitalised. 4. Along with this appeal, the appellants have produced documents from the hospital showing that the appellants' mother was admitted in the hospital and she had undergone certain procedures in the Cardio Thoracic Surgery Department. We also notice that the respondents/defendants had stated in their objections to the application for restoration of the suit that the appellants/petitioners had not produced any document in support of the claim that their mother was hospitalised. On the basis of the records, we are inclined to hold that the appellants'/petitioners' mother was hospitalised, even on the date on which the suit was posted for F.A.O.No.232 of 2009 :: 4 :: trial in the special list. Obviously, the court below ought to have granted the appellants an opportunity to adduce evidence and thereby show further cause and lead evidence in support of the request for restoration of the suit filed for recovery of Rs.6,80,000/-. 5. Taking into account the aforesaid facts and circumstances into consideration, we are of the view that the impugned order does not stand and it calls for interference. 6. In the result, this appeal is allowed, setting aside the impugned order dated 22.6.2009. I.A.No.1570/09 in O.S.No.238/2001 on the file of the Additional Sub Judge, Kollam is allowed, restoring the said suit. The court below should expeditiously consider the disposal of that suit, based on any request in that regard, by the parties. F.A.O.No.232 of 2009 :: 5 :: The parties are directed to appear before the court below on 5.7.2010. Sd/- (THOTTATHIL B.RADHAKRISHNAN) JUDGE Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/ //true copy// P.S. to Judge.