IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 FAO.No. 94 of 2006() -------------------- (ORDER DATED 17.11.2005 IN I.A.NO.917/2005 IN O.S.NO.118/99 ON THE FILE OF SUB COURT, OTTAPPALAM. ) APPELLANT/PETITIONER/PLAINTIFF: ------------- MOIDEENKUTTY @ BAPPU, S/O. EENGACHALIL PALLIKKARA VEETTIL AVARANKUTTY- HAJI, NADUVATTOM AMSOM, KEEZHUMURI DESOM, OTTAPPALAM TALUK. BY ADV. SRI.D.ANIL KUMAR RESPONDENT(S): RESPONDENTS/DEFENDANTS: --------------------- 1. MUHAMMED @ VAPPUTTY HAJI, S/O.VAPPU, KODAKKATTUPARAMBIL HOUSE, PULASSERY AMSOM, KARINGANAD DESOM. 2. KADEEJA, W/O. MUHAMMED, KODAKKATTUPARAMBIL, PULASSERY AMSOM, KARINGANAD DESOM, OTTAPPALAM TALUK. BY ADV. SRI.SANTHEEP ANKARATH FOR R1 & 2 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 10/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. ------------------------------- F.A.O.No.94 OF 2006 ------------------------------- Dated this the 10th June, 2009 J U D G M E N T Raman, J. This is an appeal by the plaintiff against the order in I.A.No.917 of 2005 in O.S.No.118 of 1999, on the file of Sub Court, Ottappalam, dismissing the application for restoration of the suit, which was dismissed for defult. 2. The suit was one for return of advance money said to have been paid for sale of the plaint schedule property. On 19.5.2005, when the case stood posted, the plaintiff remained absent, there was no representation also, and the suit was dismissed for default. Thereafter, he filed the present application interalia contending that he could not attend the court on the appointed day, as he had to go to the hospital since he fell ill. The defendant resisted the application by contending that there is no bona fides in the petition and the reasons given are false. F.A.O.No.94 of 2006 2 Though matter was posted for evidence, no evidence was adduced. In the circumstances, the court below dismissed the application, against which this appeal is filed. 3. We have heard the parties. In so far as the application for restoration is not supported by any document and in the absence of any oral evidence in support thereof, we cannot find fault with the court below for dismissing the application. 4. However, we have perused the copy of the affidavit filed in support of the application for restoration. We find that the case was posted on 2.4.2005 on which day it was adjourned on the request of the counsel for the plaintiff, since the plaintiff was not keeping well. The court adjourned the case to 19.5.2005, and as there was no representation on that day also, it was dismissed for default. Therefore, what was the reason for the absence on 19.5.2005 alone is relevant. The reasons stated for the absence on 19.5.2005 was that he has shifted his residence and letter sent by the lawyer was not received, since the change of address probably was not intimated to the counsel. F.A.O.No.94 of 2006 3 This reason as put forth in the affidavit has never been considered by the court below. In the circumstances, we feel that it is a fit case where the application for restoration could be allowed on terms. 5. Accordingly, we allow the appeal, set aside the impugned order and restore the suit to file, however on condition that the appellant shall pay an amount of Rs.2000/= to the respondents through counsel before the court below, within a period of three weeks from today, failing which the appeal shall dismissed. On payment of the said amount, the suit will be proceeded with and decided on merits. The parties shall appear before the court below on 14.9.2009. P.R.RAMAN, JUDGE P.BHAVADASAN , JUDGE. nj.