IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 16TH SEPTEMBER 2010 / 25TH BHADRA 1932 FAO.No. 272 of 2010 ---------------------------- (I.A.No.9/2010 in OS.134/2009 of SUB COURT, PERUMBAVOOR) .................... APPELLANT (S): PETITIONER: ----------------------------------------- SUSEELA, AGED 45 YEARS, W/O.RADHAKRISHNAN, KAVISSERY HOUSE, IMURI P.O., KOOVAPPADY VILLAGE. BY ADV. SRI.N.K.MOHANLAL RESPONDENT(S): RESPONDENTS: ----------------------------------------------- 1. SABIK AHAMMED, AGED 28 YEARS, S/O.ABDUL RAHIM, RAHUKA MANZIL, 33/1905, VENNALA, EDAPPALY SOUTH VILLAGE, KOCHI-28. 2. HANEESH, AGED 27 YEARS, S/O.ALI BAVA, CC 2/962, KOCHERY, NEAR C.P.THODU, FORT KOCHI VILLAGE, KOCHI-1. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 16/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & P.Q.BARKATH ALI, JJ. ------------------------------------------------------ F.A.O.No.272 of 2010 ---------------------------------------------- Dated, this the 16th day of September, 2010 J U D G M E N T Thottathil B.Radhakrishnan, J. This appeal is filed against the order dismissing an application under Order 9 Rule 9 of CPC. The first two sentences in the impugned order clearly state that the plaintiff was absent when the petition was called and there was no representation on her behalf. This finding is not challenged in the appeal. Therefore, notwithstanding the statement in the impugned order that there is no sufficient cause to restore the suit we are of the firm view that the impugned order is only one passed in default on account of non-appearance. Therefore, we refuse to entertain this appeal and leave the appellant with liberty to move the trial court with application for restoration of the application which stands dismissed for default as per the impugned order. Having regard to the time taken by the appellant for obtaining the certified copy produced by her and in prosecuting this appeal, the court below will take a lenient view in an application seeking condonation of delay in filing such application for restoration. FAO 272/2010 -2- Subject to the above, this appeal is dismissed. (THOTTATHIL B.RADHAKRISHNAN) JUDGE. (P.Q.BARKATH ALI) JUDGE. MS