IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 21ST OCTOBER 2008 / 29TH ASWINA 1930 FAO.No. 2 of 2008 AGAINST THE ORDER DATED 31.5.2007 IN I.A.NO.1147/2006 IN OS.NO.51/2005 OF SUB COURT, HOSDRUG APPELLANT: APPLICANT:PLAINTIFF --------------------------------------- M.K.JOSE, AGED 52 YEARS, S/O.KURIAN, CHRISTIAN, P.W.D. CONTRACTOR, RESIDING AT MAROTTIKUZHIYIL HOUSE, PADIMARUTHU, KODOM VILLAGE OF HOSDURG TALUK. BY ADV. SRI.ABRAHAM VAKKANAL (SR.) SRI.PAUL ABRAHAM VAKKANAL SRI.BIJIMON C.CHERIAN SRI.ARUL KUMAR.P SRI.LOWEL CHERIAN RESPONDENTS: RESPONDENTS:DEFENDANTS ------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SUPERINTENDING ENGINEER, P.W.D. ROADS & BRIDGES, NORTH CIRCLE, KOZHIKODE. 3. THE EXECUTIVE ENGINEER, P.W.D. ROADS & BRIDGES DIVISION, KASARAGODE. GOVERNMENT PLEADER SRI.MOHAMMED ANZAR THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 21/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & K.T.SANKARAN, JJ. ------------------------------------------------------------- F.A.O. NO. 2 OF 2008 ------------------------------------------------------------- Dated this the 21st October, 2008 JUDGMENT K.T.Sankaran, J. The appellant challenges the order dated 31.5.2007 in I.A.No.1147 of 2006 in O.S.No.51 of 2005, on the file of the Court of the Subordinate Judge of Hosdrug, by which, the court below dismissed the application filed by the appellant under Order IX Rule 9 of the Code of Civil Procedure. The suit filed by the appellant was listed for trial on 7.10.2006. The suit was dismissed as the appellant/plaintiff did not appear on that day. The appellant stated that he could not appear on 7.10.2006 as his wife was admitted in a nursing home and he was attending to her. 2. The court below dismissed the application under Order IX Rule 9 of the Code of Civil Procedure stating that the medical certificate produced by the appellant cannot be believed as no certificate would be issued by a doctor to show that a particular person was a bystander attending the patient. It is to be noted that the application was filed within time. It cannot be presumed that F.A.O. NO. 2 OF 2008 :: 2 :: the appellant was deliberately absent. When a case is put forward by the appellant that his wife was admitted in a nursing home and that he had to attend to her in the nursing home, normally an opportunity should be afforded to the appellant to prosecute the case on the merits. Another ground stated by the court below for dismissing the application is that no application for adjournment of the case listed for trial was moved by the appellant. It is stated that the appellant could have informed the counsel about his inability to appear before the Court either by telephone or through some other person. 3. We are of the view that the appellant should be afforded an opportunity to prosecute the case on the merits. The court below, to our mind, has taken a hyper-technical approach in the case. Since the application was filed within time, the court below should have allowed the application, at least on terms. 4. Accordingly, we allow the Appeal, set aside the order passed by the court below and allow I.A.No.1147 of 2006 on condition that the appellant shall pay a sum of Rs.5,000/- (Rupees Five thousand only) as costs to the Kerala High Court Legal Services F.A.O. NO. 2 OF 2008 :: 3 :: Committee within a period of one month. If the appellant fails to pay the costs, the appeal shall stand dismissed. If the costs are paid within the aforesaid period of one month, the suit shall be restored to file. The interlocutory application for direction, I.A.No.123 of 2008, is closed. (KURIAN JOSEPH) Judge (K.T.SANKARAN) Judge ahz/