IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 13TH JUNE 2011 / 23RD JYAISHTA 1933 FAO.No. 82 of 2010() -------------------- AGAINST THE ORDER IN IA 3044/08 IN OS.433/2006 of PRINCIPAL SUB COURT,KOLLAM .................... APPELLANTS/PETITIONERS/PLAINTIFF ---------------------------------------------------- 1. RAJASEKHARAN PILLAI, LEKSHMI NILAYAM, THEVALLY P.O., KOLLAM, FROM LEKSHMI NILAYAM, PADINJATTINKARA, KOTTARAKKARA, KOLLAM. 2. SOBHAKUMARI, LEKSHMI NILAYAM, THEVALLY P.O., KOLLAM, FROM LEKSHMI NILAYAM, PADINJATTINKARA, KOTTARAKKARA, KOLLAM. BY ADV. SRI.C.RAJENDRAN RESPONDENT(S): RESPONDENTS/DEFENDANTS ------------------------------------- 1. SARADAMMA, W/O. LATE P.N.RAMACHANDRAN NAIR, MUNDOTTU VEEDU, MALAYIL MURI, VELIYAM, KOLLAM DISTRICT. 2. SMITHA, D/O. LATE P.N.RAMACHANDRAN NAIR, MUNDOTTU VEEDU, MALAYIL MURI, VELIYAM, KOLLAM DISTRICT. 3. SREELA, D/O. LATE P.N.RAMACHANDRAN NAIR, MUNDOTTU VEEDU, MALAYIL MURI, VELIYAM, KOLLAM DISTRICT. 4. SYAM, D/O. LATE P.N.RAMACHANDRAN NAIR, MUNDOTTU VEEDU, MALAYIL MURI, VELIYAM, KOLLAM DISTRICT. R4 BY ADV. SRI.PRATHEESH.P THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 13/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ----------------------------------- C.M.Appln.520 OF 2010 & F.A.O.No.82 OF 2010 ------------------------------------ Dated this the 13th day of June, 2011 JUDGMENT Thottathil B.Radhakrishnan,J. This appeal, with an application for condonation of delay of 136 days, is filed challenging an order by which the court below refused to restore to file a suit that was dismissed for default. The plaintiff contended before the court below that there was a mistaken noting of the posting of the case by the advocate clerk and this led to non-appearance before that court on the date to which the case stood posted. The application for restoration was filed within the period prescribed by law for such purpose. Having considered the ground stated for restoration of the suit, we are satisfied that the plaintiff had shown sufficient cause for the relief of restoration. We have also perused the plaint and we are of the view that it would be unjust to deny a trial on merits. FAO.82/10 2 However, the choosing of an erroneous remedy is stated as the ground for condonation of delay in instituting this appeal. We also find that the benefit of the pendency of the erroneously filed revision petition cannot be technically projected as the reason for the delay because this appeal is filed by obtaining yet another certified copy. The endorsement on the certified copy of the impugned order, as produced along with the appeal, would show a delay of more than a year in filing the appeal. The application for condonation of delay can, therefore, be allowed only on terms. In the result, C.M.Appln.520/10 and the FAO will stand allowed on condition that the appellant pays the respondent an amount of Rs.2,500/- as costs, payable to the counsel appearing for the respondent before this Court within a period of two weeks. If such amount is paid, I.A.No.3044/08 in O.S.No.433/06 will stand allowed and the suit will stand restored to the files of the Sub Court, Kollam. The parties are directed to appear before the court below on 4.7.2011. The FAO.82/10 3 court below will verify whether the condition imposed as per this judgment is satisfied and proceed to try the suit in accordance with law, if such condition is satisfied. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- S.S.SATHEESACHANDRAN, Judge. kkb.14/6.