IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 8TH MARCH 2010 / 17TH PHALGUNA 1931 FAO.No.35 of 2008 ---------------------- AGAINST THE ORDER DATED 23/08/2007 IN IA 719/2007 IN OS.142/2005 of ADDL.SUB COURT, ALAPPUZHA .................... APPELLANTS/PETITIONERS/PLAINTIFFS -------------------------------------------- 1. M/S.UNITED BLOCKS AND ALLIED BUILDING MATERIALS, MANNANCHERRY, ALAPPUZHA REPRESENTED BY ITS MANAGING PARTNER JOSEPH C.KURIAKOSE RESIDING AT CHARUVAUPARAMBIL HOUSE, THOTTOMON RANNI, PATHANAMTHITTA. 2. JOSE P., S/O.PAPPACHAN, PADICHIRA HOUSE MANNANCHERRY P.O., ALAPPUZHA. 3. MARIAMMA JOSE, W/O.JOSE PADICHIRA HOUSE, MANNANCHERRY P.O., ALAPPUZHA. 4. PRASAD MATHEW, S/O.C.K.MATHEW CHANDANAPPALLIL HOUSE, KATTOOR, THIRUVALLA. BY ADV. SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN RESPONDENT(S): CR.PETITIONERS/DEFENDANTS -------------------------------------------------------- 1. THE BRANCH MANAGER KERALA FINANCIAL CORPORATION, ALAPPUZHA. 2. THE REGIONAL MANAGER KERALA FINANCIAL CORPORATION, ALAPPUZHA. FAO.35/08 -2- 3. THE MANAGING DIRECTOR KERALA FINANCIAL CORPORATION, THIRUVANANDAPURAM. ADV. SRI. A. A. ABUL HASSAN, SC, KFC THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 08/03/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. ------------------------------------------------ F. A. O. No.35 of 2008 ------------------------------------------------ Dated this the 8th day of March, 2010 JUDGMENT Pius C. Kuriakose, J Under challenge in this appeal is an order of the Subordinate Judge's Court, Alappuzha dismissing I.A. No.719/07 filed by the appellant/ plaintiff. The I.A. was for restoration of the suit which was dismissed for default. The learned Subordinate Judge under the impugned judgment has found that the appellant was not at all diligent in prosecuting the suit filed by him. The court found that on a previous occasion also when the suit was listed for trial in the special list, the appellant did not get ready and the case was got F. A. O. No.35 of 2008 -2- adjourned stating certain reasons. On the fateful day when the impugned order was passed, neither the appellant nor his counsel was present. The ground for restoration was that the appellant was laid up with 'Chickun Guniya'. As rightly noticed by the learned Subordinate Judge, no convincing medical evidence was adduced by the appellant. Ordinarily we would not have interfered with the impugned order. 2. Sri.S.Sanal Kumar, the learned counsel for the appellant submits that subsequent to the filing of the appeal, the issues raised in the suit have been settled between the parties and that a compromise petition will be filed, once the suit is restored, before the court below. According to the learned counsel, if a compromise petition under F. A. O. No.35 of 2008 -3- Order 23 Rule 3 is filed, the appellant may be able to salvage 50% of the substantial court fee remitted on the plaint. We feel that by imposing suitable terms opportunity as requested by the learned counsel can be granted for formally compromising the issues and salvaging the court fee remitted. The learned Subordinate Judge can either permit the parties to file a proper compromise petition under Order 23 Rule 3 or refer the suit to one of the Adalaths conducted by the District Legal Services Authority, so that the appellant may be able to salvage the full court fee. We are inclined to grant that opportunity only on imposing conditions. 3. The result is that the order under appeal is set aside and I.A.719/07 will stand allowed and F. A. O. No.35 of 2008 -4- the suit will stand restored back to the file of the Additional Sub Court, Alappuzha on condition that the appellant pays a sum of Rs.3,000/- to the High Court Legal Services Committee within ten days from today and produces receipt before the Additional Sub Court, Alappuzha. Once the Additional Sub Court, Alappuzha notices receipt against payment of the above amount, that court will restore O.S.142/05 back to file. Thereafter, the court will either permit the parties to file compromise petition on that court itself or refer the suit to the Lok Adalath conducted under the aegis of the District Legal Services Authority so as to facilitate compromise of the dispute between the parties and get refund the court fee also. It is needless to mention that if the cost is not paid, F. A. O. No.35 of 2008 -5- the impugned order will stand confirmed. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/-