IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 27TH MAY 2009 / 6TH JYAISHTA 1931 FAO.No. 268 of 2005() --------------------- AGAINST THE ORDER IN IA.NO.1242/05 IN OS.79/2003 of PRINCIPAL SUB COURT,PARAVUR .................... APPELLANT/PETITIONER/PLAINTIFF: ---------------------------------------------------- HENKEL SPIC INDIA LTD., A PUBLIC LTD.CO. HAVING ITS PRINCIPAL OFFICE AT `TEMPLE TOWER' 3RD FLOOR, NO.672, ANNA SALAI, NANDANAM, CHENNAI, REP. BY ITS POWER OF ATTORNEY HOLDER HAROLD JOSEPH D' CUTO, AGED 42, C/O. CURIEN JACOB & CO., CLEARING & FORWARDING AGENTS OF HENKAL SPIC INDIA LTD.,ALWAYE BY ADV. SRI.R.MANOJ SMT.SINDHU MANOJ RESPONDENT(S)/RESPONDENT/DEFENDANT: --------------------------------------------------------------- P. SURENDRANATH, PROPRIETOR, SHAKTHI MARKETTING, III, 161, CHENNAMANGALAM JUNCTION, NORTH PARAVOOR. ADV. SRI.K.VINOD CHANDRAN FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 27/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 268 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of May, 2009. JUDGMENT Raman, J, The appellant instituted a suit for realisation of the amount allegedly due from the defendant. On the appointed day, finding that the appellant did not appear, the suit was dismissed for default. Thereupon he filed an application for restoration. The court below dismissed the same. The present appeal is filed against the same. 2. According to the court below the interrogatories served on the appellant were not answered though number of postings were there and the suit was dismissed for non-prosecution on 7.5.2005. But the appellant contended that the posting date was mistakenly noted as 7.3.2005 instead of 7.2.2005. The fact that he had not appeared on 10.12.2004 and 2.2.2005 itself may not be a reason for not to restore the case since arrangements have been made through another Advocate on those days. It is evident from the impugned order itself. The non-representation was only on F.A.O. 268/2005. 2 7.2.2005 and the fact that the suit is also filed through power of attorney cannot be a good ground for dismissing the application for restoration. The point that would arise for consideration is as to whether the appellant as plaintiff was bonafide prosecuting the matter or whether there was any laches and negligence on his part in not appearing on the appointed day. Obviously, it cannot be said based on the materials on record that he did not prosecute the matter diligently., that he had been representing through another counsel on the date on which the case stood posted on an earlier occasion as observed by the court below. His explanation that his clerk noticed the date by mistake as 7.3.2005 is not found against. At any rate, the plaintiff has instituted the suit after paying the court fee and for the lone absence on the date on which the case stood posted may not be a ground to non-suit him when an application for restoration is filed. Atleast the court ought to have allowed the application for restoration on terms in the larger interests of justice. 3. In the above facts and circumstances, and after hearing the parties, we find that this is a fit case where the application for F.A.O. 268/2005. 3 restoration would have been allowed by the court on terms. Accordingly, we allow the appeal, set aside the order impugned in this appeal and restore the suit to file on condition that the an amount of Rs.5000/- should be paid by the appellant to the respondent herein through counsel within a period of three weeks from today, failing which the appeal will stand dismissed. In case the order is complied with, the parties shall appear before the court below on 15.7.2009. P.R. Raman, Judge P. Bhavadasan, Judge sb.