IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 25TH MAY 2011 / 4TH JYAISHTA 1933 OP(C).No. 1670 of 2011(O) ------------------------- I.A.NO.1782/2009 IN OS.NO.304/2008 of ADDL.MUNSIFF COURT, KASARAGOD .................... PETITIONER (S): APPELLANT/PLAINTIFF ----------------------------------------------------------- PRASHANT KUMAR, AGED 45 YEARS S/O.ADHIRAJA HEGDE, RESIDING AT ALANTHAYAR HOUSE PILLYA VILLAGE, BELLTHANGADI TALUK, D.K.DISTRICT KARNATAKA. BY ADV. SRI.PEEYUS A.KOTTAM RESPONDENT(S): RESPONDENTS/DEFENDANTS --------------------------------------------------------------------- 1. B.N.ISHWARA BHAT, AGED 40 YEARS S/O. B.N.KRISHNA BHAT, BAYADI HOUSE KUDALMERKALA, PO KASARGOD DISTRICT 672 535. 2. B.N.GOVINDA BHAT, AGED 43 YEARS S/O. B.N.KRISHNA BHAT, BAYADI HOUSE, POST : KUDALMERKALA, KASARGOD TALUK AND DISTRICT 672 535. 3. PEUS MACHADO, AGED 50 YEARS S/O.JOSEPH MACHADO, RESIDING AT KAYAR VILLAGE AND POST, PO KASARGOD DISTRICT 672 535. 4. MOOSA HAJI, AGED 59 YEARS S/O.KUTTIAMI, RESIDING AT BADARIYA MANZIL, MAGALPADI PO AND VILLAGE, KASARGOD DISTRICT 672 535. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 25/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. -------------------------------------- O.P.(C).No.1670 of 2011 --------------------------------------- Dated this the 25th day of May, 2011 JUDGMENT O.S.No.304 of 2008 filed by the petitioner before the Additional Munsiff's Court, Kasaragod was dismissed for default. The petitioner filed I.A.No.1782 of 2009 for restoration of the suit. Though the application should have been filed under Rule 9 of Order 9 of the Code of Civil Procedure, a wrong provision of law was quoted. The petitioner contended that he was prevented by sufficient cause from appearing before court on the date on which the suit was listed for trial. He contended that he was suffering from jaundice. A medical certificate of an Ayurvedic Physician was produced before court. No evidence was adduced by the petitioner. He also did not examine the doctor who issued the certificate. However, the trial court allowed the application on payment of costs of ` 1,000/- each to defendants 1 to 4. O.P.(C) No.1670/2011 2 2. Aggrieved by the imposition of costs as a condition for allowing the application, the petitioner filed an appeal before the District Court, Kasaragod. The appeal was dismissed by the judgment dated 5th April, 2011. The petitioner is aggrieved by the same. 3. In spite of the fact that the petitioner did not produce any acceptable evidence to show that he was laid up and therefore he could not appear before court, the court was inclined to afford an opportunity to the petitioner to prosecute the suit. However, the court imposed a condition of payment of ` 1,000/- each to defendants 1 to 4. The suit is for specific performance of an agreement for sale. It cannot be said that the discretion exercised by the court in allowing the application on condition of payment of costs is arbitrary or illegal. The appellate court also rightly confirmed the order passed by the trial court. O.P.(C) No.1670/2011 3 4. For the aforesaid reasons, I do not find any ground to interfere with the concurrent decisions of the court below. However, taking into account the facts and circumstances of the case, time is granted to the petitioner to pay the costs on or before 24.6.2011 and to that extent the order and judgment are modified. The Original Petition is disposed of as above. K.T.SANKARAN JUDGE csl