IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 10TH AUGUST 2009 / 19TH SRAVANA 1931 FAO.No. 203 of 2003() --------------------- AGAINST THE ORDER DATED 16/06/2003 IN IA. 1712 /2002 IN OS.228/1995 OF SUB COURT, MANJERI .................... APPELLANT/PETITIONER/PLAINTIFF: -------------------------------- CHENMMALA UMMER BY MUKTHIAR AGENT PARUTHIKUNNAN UMMER, MAMBAD AMSOM KAPPIL DESOM, ERNAD TALUK. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR RESPONDENTS: RESPONDENTS/DEFENDANTS: -------------------------------------- 1. AMINAKUTTY, W/O. KALLUVETTIKUZHIYIL MUHAMMADALI, D/O. PARAYAMTHODI KUNHI MUHAMMED, KALLUVETTIKUZHIYIL HOUSE, NILAMBUR AMSOM DESOM, ERNAD TALUK. 2. THANOOJA, D/O. AMINAKUTTY, DO. DO. 3. SAJEER, D/O. AMINAKUTTY, DO. DO. 4. SHAHINI, D/O. AMINAKUTTY, DO. DO. 5. SADATH, S/O. AMINAKUTTY, DO. DO. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 10/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. = = = = = = = = = = = = = = = = = = = F.A.O. 203 OF 2003 = = = = = = = = = = = = = DATED THIS, THE 10TH DAY OF AUGUST, 2009. J U D G M E N T Bhavadasan, J. The suit is one for specific performance. The plaintiff and the predecessor in interest of the defendants entered in to an agreement for sale of plaint schedule property and an advance amount of Rs. 25,000/- was paid. Since the sale deed was not executed by the defendants, the suit was laid. 2. The defendants entered appearance and filed a written statement disputing the signature on the document. The plaintiff, therefore, had taken steps to have the signature examined by an expert. Hence the plaintiff filed I.A. 682/1998 for comparison of the signature by an expert which was allowed on 14.6.2000. Thereafter, the plaintiff filed I.A. 1074/2000 on 16.10.2000 for calling for the salary register from the Nilambur Chandakunnu A.U.P. School for the period from January to March, 1981, which contains the admitted signature of the predecessor in interest of the defendants for the purpose of sending it for comparison by an expert. That petition was allowed on 21.6.2002 and the document was produced in Court on 13.8.2002. The court posted the suit for taking steps to 26.9.2002 and F.A.O. 203/2003 2 on that day, again the case on posted to 16.11.2002. According to the appellant, the suit was suo motu advanced by the court to 2.11.2002 and included in the list for trial which was not communicated to him by his counsel and he could not appear in court on that day. The court therefore, dismissed the suit on that day for default. Plaintiff then filed I.A. 1712/2002 in O.S. 228/1995 seeking to have the suit restored to file. The reason urged was that the counsel appearing failed to inform him about the posting of the case and so he could not appear on the day on which the suit was listed for trial. 3. It must be seen that the court below has observed that the plaintiff failed to take steps for sending the documents to the Expert for comparison though he was given several opportunities and so suit was listed to 2.11.2002 finding that no sufficient cause has been shown to restore the suit, the petition was dismissed. Hence the appeal. 4. From the records, it can be seen that the appellant/plaintiff had taken steps very diligently after filing the suit. It is difficult to believe that the plaintiff has lost his interest and absented willfully. It is also seen that the plaintiff had a case that the advancing of the suit to 2.11.2002 was not intimated to him by his counsel and therefore, the default occurred. There is no reason to disbelieve the plaintiff. He has also averred that he was unable to take steps to send the documents for expert opinion as he was laid up. It F.A.O. 203/2003 3 is rather difficult to think that the plaintiff would have deliberately abstained from the court inviting the risk of the suit being dismissed for default. Moreover, it must be noticed that the plaintiff cannot file an appeal against the order nor can he file another suit on the same cause of action. Under such circumstances, it is difficult to assume that the plaintiff would have deliberately absented from court taking the risk of having the sole remedy of the suit being restored to file. There is no reason to believe that the absence of the plaintiff in court on 2.11.2002 was willful. There is nothing to show that the plaintiff had adopted any dilatory tactics in the proceedings earlier also. The default occurred for the first time on 2.11.2002 and we feel that the plaintiff should be given an opportunity to have his case decided on merits. In the result, the appeal is allowed and the impugned order is set aside. The court below will take the matter on file and consider and dispose of the same in accordance with law. P.R. RAMAN, JUDGE P. BHAVADASAN, JUDGE. KNC/-