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. 276 of 2005 ------------------------------------- AGAINST THE ORDER DATED 31.3.05 IN IA 1096/2005 IN OS.294/2001 of I ADDL.SUB COURT,ERNAKULAM .................... APPELLANT/PLAINTIFF --------------------------------- M/S.VIDEOCON INTERNATIONAL LTD., RAVIPURAM JN., M.G.ROAD, ERNAKULAM, REP. BY ITS POWER OF ATTORNEY HOLDER, & ACCOUNTS OFFICER, MR.TONY THOMAS. BY ADV. SRI.P.JACOB VARGHESE, SENIOR ADVOCATE SMT.V.A.GANGUJA SRI.V.MANOJ KUMAR SRI.VIVEK VARGHESE P.J. SRI.GINTO JOSE RESPONDENT(S): DEFENDANTS ---------------------------------------------- 1. M/S.THUSHARA TRADERS, POOVAR ROAD, NEYYATTINKARA, TRIVANDRUM DIST., REP. BY MANAGING PARTNER MR.MOHAN DAS. 2. MR.M.K.MOHAN DAS, MANAGING PARTNER, M/S.THUSHARA TRADERS, POOVAR ROAD, NEYYATTINKARA. 3. SMT.P.R.PADMASREE, PARTNER, DO. DO. (THE THIRD RESPONDENT IS REMOVED FROM THE PARTY ARRAY AS PER ORDER IN I.A.NO.901/08 DATED 25.2.2008 AND I.A.NO. 3325/09 DATED 16.10.2009). ADV. SRI.M.RAMASWAMY PILLAI FOR R1,2 SRI.P.M.JOSEPH FOR R1,2 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. 276 OF 2005 --------------------------------------------------- Dated this the 5th October, 2009 JUDGMENT K.M. Joseph, J. This Appeal is directed against the order by which the Application filed by the appellant for restoration of the Suit which was dismissed for non-appearance of the party, stands dismissed. 2. We heard the learned counsel for the appellant and the learned counsel appearing on behalf of the respondents. Of course, the case set up by the appellant was that the absence of the appellant was attributed to the sales tax assessment which was allegedly going on in the appellant's concern on that day. It is stated that if that is true, a petition could have been filed seeking adjournment on that day. It is noted that the oral evidence of PW1 was not satisfactory. 3. We feel that an opportunity should be given to the F.A.O.276/05 2 appellant to have a decision on merits. But, it cannot be an unconditional order. In the circumstances of the case, we allow the Appeal and set aside the impugned order and the Suit will stand restored to file on condition that the appellant will pay a sum of Rs.5,000/= (Rupees Five Thousand) as costs to the respondents within a period of one month from today and a memo to that effect shall be produced before this Court within one month from today. If the costs is not paid within the aforesaid time, the Appeal will stand dismissed. The costs shall be paid to the counsel appearing for the respondents in this Court. Sd/= K.M. JOSEPH, JUDGE Sd/= M. L. JOSEPH FRANCIS, JUDGE kbk. // True Copy // Counsel for the appellant has paid Rs.5,000/= (Rupees Five thousand only) towards cost to the counsel for the respondents within stipulated time in compliance of the direction contained in the judgment dated 05/10/2009 in FAO.276/2005 vide memo c.f.7540/2009 dated 11/11/2009. Sd/= Registrar (Judicial) F.A.O.276/05 3