IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 14TH SEPTEMBER 2009 / 23RD BHADRA 1931 FAO.No. 308 of 2008 --------------------- AGAINST THE ORDER DATED 07.8.2008 IN IA.1267/2007 IN OS.123/2001 of SUB COURT, TIRUR .................... APPELLANT/ PETITIONER/PLAINTIFF: ------------------------------------------------------ POCKER, S/O.CHOLAKKAL PULIKKAPARAMBIL KUTTIRAVU HAJI, TIRUR TALUK, TANALOOR AMSOM DESOM, P.O.TANALOOR. BY ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE SRI.SAJU.S.A RESPONDENT(S): RESPONDENTS/DEFENDANTS: ---------------------------------------------------------------------- 1. CHOLAKKAL PULIKKAPARAMBIL KUTTIRAVU HAJI'S CHILDREN, ALAVIKUTTY HAJI, TIRUR TALUK, OZHUR AMSOM DESOM, P.O. OZHUR. 2. MAMMU, TIRUR TALUK, OZHUR AMSOM DESOM, P.O.OZHUR. 3. KUNHEEMA UMMA, TIRUR TALUK, OZHUR AMSOM DESOM, P.O.OZHUR. 4. CHOLAKKAL PULIKKAPARAMBIL KUTTYRAVU HAJI'S WIFE, THITHUTTY HAJJUMMA. ADV. SRI.MILLU DANDAPANI FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 14/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. -------------------------------------------------- F.A.O. NO. 308 OF 2008 --------------------------------------------------- Dated this the 14th September, 2009 JUDGMENT K.M. Joseph, J. Memo dated 25.8.2009 filed by the learned counsel for the appellant is recorded. 2. Appellant challenges the order passed in IA.No.1267/07 which is an Interlocutory Application filed under Order 9 Rule 9 of the Code of Civil Procedure, for restoration of the Suit which was dismissed for default. The Suit is one for partition. The Suit was put up in the ready list for trial on 11.6.2007. According to the appellant, he is an asthma patient and on 9.6.2007 he was admitted in the City Hospital, Tirur due to severe asthma and high blood pressure. He was an inpatient for one day and he was discharged on 10.6.2007. According to FAO.NO.308/08 2 him, he was advised to take rest for two weeks. On this basis, he would say that he could not appear on 11.6.2007. He sought adjournment. The said application was dismissed. on 2.7.2007, he filed the present IA for restoration and the said application was rejected. 3. We heard the learned counsel for the appellant and also the learned counsel appearing on behalf of the first respondent. We went through the order. The learned Sub Judge has given reasons as to why he was not inclined to exercise the discretion vested with him. 4. Learned counsel for the appellant made available the proceedings. The appellant was examined as PW1. Ext.A1 is produced as the medical certificate. Respondents have produced Exts.B1 and B2. 5. The court below found, inter alia, that as to who has issued Ext.A1 Certificate is not mentioned. It is further found FAO.NO.308/08 3 that it is not gatherable that it was issued by the Doctor. It is further found that the appellant did not specify as to who treated him. The seal or the signature of the Doctor etc. are not seen in the Certificate. It is further noted that in cross-examination, the appellant had admitted that the Suit was listed earlier on four occasions and the trial could not be conducted because of his applications for removal on all those occasions. The learned Sub Judge also has given reasons to show that the appellant does not deserve the benefit of the discretionary jurisdiction. The appellate court has noted that the word “sufficient cause” has to be interpreted liberally, but having regard to the facts of this case, the learned Sub Judge thought that this was not a case which requires the discretion being exercised in favour of the appellant. Learned counsel for the first respondent also pointed out the facts. He would further submit that the appellant has no case on merits also. FAO.NO.308/08 4 6. We notice that the Suit was filed in the year 2001. Even though we would agree with the learned counsel for the first respondent that the case has been adjourned from time to time and also that the medical certificate produced as Ext.A1 does not contain the name and seal of the Doctor as also the seal of the hospital, and the appellant has not able to remember the name of the Doctor, we would think that in the interest of substantial justice, there should be a decision on merits. 7. In view of the same, we would think that the appellant should be given one more opportunity to contest the matter on merits. But, the order cannot be an unconditional order. Having regard to the facts and circumstances of the case, we would think that the application filed by the appellant can be allowed on condition that the appellant pays costs of Rs.15,000/= (Rupees Fifteen Thousand) to the first respondent. Accordingly, the Appeal is allowed and the impugned order is set aside and the Application of the appellant will stand allowed on condition FAO.NO.308/08 5 that the appellant will pay costs of Rs.15,000/= (Rupees Fifteen Thousand) to the first respondent within a period of six weeks from today. We make it clear that in case costs is not paid as aforesaid, the Appeal will stand dismissed. Sd/= K.M. JOSEPH, JUDGE Sd/= M. L. JOSEPH FRANCIS, JUDGE kbk. // True Copy // PS to Judge