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 2ND NOVEMBER 2009 / 11TH KARTHIKA 1931 FAO.No. 264 of 2009() --------------------- AGAINST THE ORDER DATED 29/11/2008 IN IA.574 & 575/2006 IN OS.13/2004 of SUB COURT,KATTAPPANA .................... APPELLANT ------------------------ RBT LTD., REPRESENTED BY MANISH MOHAN SHARMA, DIRECTOR, RAM BAHADUR THAKKUR LTD., SIDHARTH BUILDING, 2ND MAIN ROAD, WILLINGDON ISLAND, COCHIN-3. BY ADV. SRI.DEVAN RAMACHANDRAN SRI.K.M.ANEESH RESPONDENTS: --------------- 1. S.A.ASHOKAN, S/O.AYYAPILLAI, KIZHAKKEPUTHUVAL, KOSHIKKANAM KARA, ELAPPARA VILLAGE, PEERMADE TALUK. 2. SUNNY JOSEPH, S/O.JOSEPH, KUTTIKKATTU HOUSE, CHINNAR P.O., ELAPPARA VILLAGE, PEERMADE TALUK. BY SRI. A.C. DEVASSIA THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 02/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O.No. 264 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of November, 2009 JUDGMENT Joseph, J. This appeal is filed against the common order passed in I.A.Nos. 574 and 575 of 2006 in O.S.No. 13 of 2004 on the file of the Sub Court, Kattappana. The appellant is the plaintiff in that suit. The defendant had filed a counter claim. The suit came to be dismissed for default. Thereupon the appellant filed the above applications seeking restoration of the suit under Order IX Rule 9 C.P.C. as also to condone the delay of 18 days in filing the application for restoration. The said applications stand dismissed by a common order, which is under challenge in this appeal. F.A.O.No. 264 of 2009 2 2. We heard the learned counsel for the appellant and the learned counsel for the respondents. 3. The learned counsel for the appellant would submit that the appellant being the Director of the Company, is disabled from appearing in court on account of the fact that he was in Delhi in connection with another case in the Supreme Court. The court below did not accept the said contention and the suit filed by the appellant stands dismissed and the counter claim filed by the respondents stand decreed. 4. We take a liberal view and we feel that the appellant should be permitted to have a decision on the merits of the matter. 5. Accordingly this appeal is allowed. The order in I.A.Nos. 574 and 575 of 2006 is set aside and the applications are allowed, on condition that the appellant pays an amount of Rs.3,000/- as cost to the respondents and produce a memo to that F.A.O.No. 264 of 2009 3 effect within a period of one month from today. If the appellant does not pay the cost as aforesaid, the appeal will stand dismissed. (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm