IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 11TH JUNE 2009 / 21ST JYAISHTA 1931 FAO.No. 202 of 2008() --------------------- AGAINST THE ORDER IN IA 1123/2006 IN OS.516/2001 of PRINCIPAL SUB COURT,ERNAKULAM .................... APPELLANTS (PETITIONER/PLAINTIFF). ------------------------------------------------------ SAJU, SANKOORIKKAL HOUSE, POONITHURA VILLAGE, PALARIVATTOM DESOM, (PRESENTLY RESIDING AT SANKOORIKKAL HOUSE, CHAMBAKARA, THOMAS PURAM, MARADU-682 304). BY ADV. SRI.T.M.ABDUL LATHEEF RESPONDENT(S): RESPONDENTS (RESPONDENTS/DEFENDANTS). -------------------------------------------------------------------------------------------- 1. STANLEY, PALLIPARAMBIL HOUSE, FORT KOCHI VILLAGE, FORT KOCHI DESOM. 2. AMMINI JOSE, FLAT NO.B, J.M.TOWERS, OPPOSITE CHINMAYA SCHOOL, PALLIKATTU TEMPLE ROAD, VADUTHALA DESOM, ERNAKULAM DISTRICT. ADV. SRI.VIVEK VARGHESE P.J. FOR R1,2 SRI.P.J.VINOD JOSEPH FOR R1,2 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 11/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 202 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of June, 2009. JUDGMENT Bhavadasan, J, Plaintiff is the appellant. The suit was one for cancellation of a document. The suit was listed for trial to 14.10.2005. On that day the plaintiff did not appear before the court nor was there any representation made on his behalf. Consequently the suit was dismissed for default. 2. The plaintiff filed I.A. 1123 of 2006 and I.A. 1122 of 2006 in O.S. 516 of 2001 seeking restoration of the suit and to condone the delay in filing the petition to set aside the order dismissing the suit for default. The court allowed both the applications on condition that the plaintiff pays a sum of Rs.5,000/- to the defendants as costs. Plaintiff failed to pay the amount and accordingly on the next posting date, the petitions were dismissed. The said order is assailed in this appeal. FAO. 202/2008. 2 3. Learned counsel appearing for the appellant pointed out that having found that there was sufficient reason for the absence of the plaintiff on the day on which the suit was listed for trial, it was unjust and improper on the part of the court to direct the plaintiff to deposit cost of Rs.5,000/-. The counsel would point out that the direction is infact illegal. 4. It is difficult to accept the above contention of the appellant. The mere fact that the plaintiff has proved sufficient cause for having his suit restored is not a ground to say that the court shall not impose conditions for restoration. In fact, the cost awarded must have been to compensate the injury caused to the defendants consequent to the default on the part of the plaintiff. There is no justification in contending that cost should not have been awarded. 5. However, it is felt that the cost awarded is very heavy and some leniency should be shown. FAO. 202/2008. 3 In the result, this appeal is partly allowed and the appellant is directed to deposit an amount of Rs.3,000/- as costs of the defendants within one month from the date of this order before the court below. If the amount is deposited within the said period, the court below shall restore the suit to file and dispose it off on merits. If the amount is not deposited, this appeal will stand dismissed. P.R. Raman, Judge P. Bhavadasan, Judge sb.