IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 21ST OCTOBER 2008 / 29TH ASWINA 1930 FAO.No. 235 of 2006 AGAINST THE ORDER DATED 10/08/2006 IN IA.NO. 220/06 IN OS.NO.58/2003 OF SUB COURT, HOSDRUG APPELLANT/APPLICANT: PLAINTIFF: ---------------------------------------- M.K. JOSE, AGED 52 YEARS, S/O. KURIAN, CHRISTIAN, PWD CONTRACTOR, RESIDING AT MAROTTIKUZHIYIL HOUSE, PADIMARUTHU, KODOM VILLAGE, HOSDURG TALUK. BY ADV. SRI.ABRAHAM VAKKANAL (SR.) SRI.PAUL ABRAHAM VAKKANAL SRI.ARUL KUMAR.P RESPONDENTS: RESPONDENTS:DEFENDANTS: -------------------------- 1. THE SUPERINTENDING ENGINEER, P.W.D. BUILDING & LOCAL WORKS, NORTH CIRCLE, KOZHIKODE, KOZHIKODE TALUK & DISTRICT. 2. THE EXECUTIVE ENGINEER, BUILDING DIVISION, KASARGOD, KASARGOD VILLAGE & TALUK. 3. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.NOBLE MATHEW THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 21/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & K.T.SANKARAN, JJ. ------------------------------------------------------------- F.A.O. NO. 235 OF 2006 ------------------------------------------------------------- Dated this the 21st October, 2008 JUDGMENT K.T.Sankaran, J. The appellant filed O.S.No.58 of 2003 on the file of the Court of the Subordinate Judge of Hosdrug, against the respondents. The suit was listed for trial on 11.1.2006. The appellant was absent on that day. There was no representation either. No application was filed for adjournment of the case. Therefore, the suit was dismissed for default. The application under Order IX Rule 9 of the Code of Civil Procedure was filed by the appellant within time. 2. The court below dismissed the application under Order IX Rule 9 of the Code of Civil Procedure on the ground that the appellant made the prayer to set aside the order of dismissal dated 10.1.2006, while, really the suit was dismissed for default on 11.1.2006. The view taken by the court below is hyper-technical. We are of the view that the court below should have allowed the application on terms. 3. Accordingly, we allow the Appeal, set aside the impugned F.A.O. NO.235 OF 2006 :: 2 :: order passed by the court below and allow I.A.No.220 of 2006 on condition that the appellant shall pay a sum of Rs.4,000/- (Rupees Four thousand only) as costs to the Kerala High Court Legal Services Committee within a period of one month. If the appellant fails to pay the costs, the appeal shall be treated as dismissed. If the appellant complies with the direction to pay the costs, the suit shall be restored to file. The interlocutory application for direction, I.A.No.3700 of 2006, is closed. (KURIAN JOSEPH) Judge (K.T.SANKARAN) Judge ahz/