IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 5TH OCTOBER 2009 / 13TH ASWINA 1931 FAO.No. 322 of 2008() --------------------- AGAINST THE ORDER DATED 22/08/2008 IN IA 3065/2006 IN OS.170/1998 of I ADDL.SUB COURT,TRIVANDRUM .................... APPELLANT/PETITIONER: -------------------- SIVARAJAN, S/O. SANKARAN, SHAJI BHAVAN, MANNANTHALA P.O., ULLOOR VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.M.R.ANANDAKUTTAN SMT.M.HEMALATHA SMT.SHIRMILA. C.S. SRI.MAHESH ANANDAKUTTAN RESPONDENT(S): --------------- 1. KAMALAKSHY (DIED), D/O. JANAKI, KUZHIVILAKATHU VEEDU, CHENCHERI MURI, ULLOOR VILLAGE, MANNANTHALA P.O., THIRUVANANTHAPURAM. 2. JYOTHI, D/O.LEELAMBIKA, ST.SEBASTIAN THOPPU BUNGLOW, CHENCHERI MURI, ULLOOR VILLAGE, MANNANTHALA P.O., THIRUVANANTHAPURAM. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 05/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH & M.L. JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. NO: 322 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th Day of October, 2009. JUDGMENT K. M. Joseph J., The appellant has filed an I.A.3065 of 2006, which is an application filed for restoration of O.S.170 of 1998 to file. This application was actually dismissed for default on 17.10.2006. But it stands restored on 19.9.2007. It is sub sequentially that the I.A for restoration of that suit was filed. It stands restored and by impugned order, the court found that the appellant, who is aged 88 years, cannot be permitted to protract the litigation for over a decade to the detriment of others. It is stated that the I.A was posted for evidence on 21.8.2008. He was absent on 21.8.08. His counsel submitted that the appellant is aged 88 years and ill and not in a position to appear before the court and adduce evidence. A medical certificate dated 1.7.2006 was produced alongwith I.A. No: 2792 of 2006. No doubt, there is no F.A.O. NO: 322OF 2008 :2: appearance for the respondents. We take a lienient view and take into consideration the age of the appellant and also to the need for decision on the merrits of the matter. But it could not be a conditional order. 2. The appeal is allowed and the impugned order is set aside. The suit will be restored to file on condition that the appellant pays a sum of Rs.4,000/- (Rupees four thousand only) as costs within a period of one month and produce the memo before the court below within one month. If the appellant does not pay the cost as aforesaid, the appeal will stand dismissed and the impugned order will stand confirmed. K. M. JOSEPH, JUDGE M.L. JOSEPH FRANCIS, JUDGE dl/