IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 7TH APRIL 2011 / 17TH CHAITHRA 1933 FAO.No. 334 of 2010() --------------------- I.A.1079/2010 IN OS.136/2006 of PRINCIPAL SUB COURT, NORTH PARAVUR .................... APPELLANT/PETITIONER/PLAINTIFF -------------------------------------------------- THIMOTHIOSE, S/O.KURIAKOSE, PARAYIL, ERUMATHALA KARA, ALUVA EAST VILLAGE, ALUVA TALUK. BY ADV. SRI.B.JAYASANKAR RESPONDENT(S): DEFENDANTS ------------------------- 1. MEENAKSHI, D/O.AYYAPPAN, PARAPURATH, ERUMATHLA KARA, ALUVA EAST VILLAGE, NOW RESIDING AT PAIMPILLIL VEEDU, KANJAR, MUTTOM, THODUPUZHA. 2. LILLY, D/O.AYYAPPAN, PARAPURATH, ERUMATHALA KARA, ALUVA EAST VILLAGE NOW RESIDING AT KOTHAPARAMBIL, THATHAPPALLY, MANNAM P.O., NORTH PARAVUR. 3. SAINA, D/O.AYYAPPAN, PARAPURATH, ERUMATHALA KARA, ALUVA EAST VILLAGE NOW RESIDING AT MANJUSHA, CHENDAMANGALAM JUNCTION, N.PARAVUR. 4. SUBRAHMANIAN, MANOJ NIVAS, PULLAMKULAM, PERUVARAM ROAD, PARAVUR VILLAGE, PARAVUR TALUK(DIED). 5. MANOJ, S/O.LATE SUBRAMANIAN, MANOJ NIVAS, PULLAMKULAM, PERUVARAM ROAD, PARAVUR VILLAGE, PARAVUR TALUK. ADDL.R6 IMPLEADED AS PER ORDER DT. 7.4.2011 IN I.A.986/2010 : 6. BISINI, D/O.LATE SUBRAHMANIAN, MANOJ NIVAS, PULLAMKULAM PERUVARAM ROAD, PARAVUR VILLAGE, PARAVUR TALUK. ADV. SRI.VIVEK VARGHESE P.J. FOR R1,2,3,5 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 07/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------- F.A.O. No.334 of 2010 ----------------------------------------------- Dated 7th April, 2011. J U D G M E N T Joseph, J. The appellant challenges the order in I.A.1079/10 in O.S.136/06 on the file of the Sub Court, North Paravur. This is an application filed under Order IX Rule 9 of the Code of Civil Procedure, for restoration of the suit, which is dismissed for default. According to the appellant, the matter had been made over to the Adalath and though many attempts were made, a settlement could not be reached. It is his case that on 13.2.2010, when the case was taken in the Adalath, the appellant was present, but it was adjourned to 13.3.2010. In the meanwhile, the case was listed for trial on 11.3.2010. Unfortunately, it is stated that, the advocate clerk by oversight, did not notice the case in the published list and therefore, there was no representation on 11.3.2010, on which date, the case was dismissed for default. Of course, the court below found that the factual situations averred by the appellant are also incorrect. The affidavit of the advocate clerk is not produced, it is stated. The case was in the special list several times, but F.A.O.334/2010 2 at the instance of the appellant, it was adjourned under the pretext of settlement in the Adalath. In spite of several chances in the Adalath and the court, the appellant was not interested to get the matter resolved. 2. We heard learned counsel appearing for the appellant and the respondents. Having regard to the need for an adjudicated decision, being a suit for specific performance, we are inclined to take the view that the matter can be disposed of by a conditional order. Accordingly, we allow the appeal, set aside the impugned order and restore the suit back, on condition that the appellant will pay a sum of Rs.1,500/- (Rupees one thousand and five hundred only) as cost to the counsel appearing for respondents 1, 2, 3, 5 and 6, within a period of one week from today and produce a memo to that effect within one week. Once the suit is restored on payment of cost by the appellant, the case will be taken up by the trial court and disposed of before closing of the court for Onam F.A.O.334/2010 3 holidays, 2011. Necessarily, if the appellant does not pay the cost, the appeal will stand dismissed. Sd/- K.M.JOSEPH, JUDGE. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs Certified that the appellant has paid Rs.1,500/- (Rupees one thousand five hundred only) as cost to Adv.Sri.Vivek Varghese, counsel for the respondents 1, 2, 3, 5 & 6 in compliance of the direction contained in the judgment dated 7.4.2011 in FAO 334/2010 vide memo c.f.1929/11 dated 11.4.2011. Sd/- Registrar (Judicial)