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. 225 of 2007 AGAINST THE ORDER DATED 17/03/2007 IN IA NO.29/2007 IN OS.8/2003 OF SUB COURT, HOSDRUG APPELLANT: APPLICANT/PLAINTIFF : M.K.JOSE, S/O.KURIAN, RESIDING AT MAROTTIKUZHIYIL HOUSE, PADIMARUTHU, KODOM VILLAGE, 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. KERALA AGRICULTURAL UNIVERSITY, REPRESENTED BY ITS VICE CHANCELLOR, VELLANIKKARA, THRISSUR. 2. THE DIRECTOR OF PHYSICAL PLANT, KERALA AGRICULTURAL UNIVERSITY, VELLANIKKARA, THRISSUR. 3. THE REGISTRAR, KERALA AGRICULTURAL UNIVERSITY, VELLANIKKARA, THRISSUR. BY STANDING COUNSEL SRI.RENJITH THAMPAN 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. 225 OF 2007 ------------------------------------------------------------- Dated this the 21st October, 2008 JUDGMENT K.T.Sankaran, J. The appellant challenges the order dated 17.3.2007 in I.A.No.29 of 2007 in O.S.No.8 of 2003, on the file of the Court of the Subordinate Judge of Hosdrug. The suit was included in the special list on 18.11.2006. The appellant did not appear before Court on that day. He moved an application for adjournment of the case. The court below rejected the application and the suit was dismissed for default. The application under Order IX Rule 9 of the Code of Civil Procedure was filed by the appellant within time. The case put forward by the appellant is that he was laid up due to severe pain on knee joint, left thigh and over lumber spine. It is stated that the doctor advised him to take rest for one week from 15.11.2006. No medical certificate was produced. Some prescription and cash bills were produced before the court below. The court below did not rely on the documents produced by the appellant. The court below was not satisfied with the explanation offered by the appellant and, therefore, the application filed under Order IX Rule 9 was dismissed. 2. After having heard the learned counsel for the appellant and the respondents, we are of the view that the appellant could be afforded F.A.O. NO.225 OF 2007 :: 2 :: an opportunity to prosecute the case on the merits on payment of costs of Rs.3,000/- to the respondents. The application under Order IX Rule 9 having been filed within time, we are of the view that a liberal approach could have been taken and the application could have been allowed on terms. 3. Accordingly, we allow the Appeal, set aside the order in I.A.No.29 of 2007 and allow the said application on condition that the appellant shall pay a sum of Rs.3,000/- (Rupees Three thousand only) as costs to the respondents within a period of one month from today. If the appellant fails to pay the costs as aforesaid, the appeal shall be treated as dismissed. If the costs are paid, the suit shall be restored to file. The interlocutory application for direction, I.A.No.2760 of 2007, is closed. (KURIAN JOSEPH) Judge (K.T.SANKARAN) Judge ahz/