IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 15TH NOVEMBER 2010 / 24TH KARTHIKA 1932 FAO.No. 328 of 2009() --------------------- AGAINST THE ORDER DATED 27/06/2009 IN IA 310/2009 IN OS.136/2008 OF SUB COURT, CHENGANNUR ................. APPELLANT / PETITIONER / PLAINTIFF : ------------------------------------------------------- OMANAKUTTAN, VIRUTHIPARAMBIL VENMONY THAZHAM MURI, VENMONY VILLAGE. BY ADV. SRI.RINNY STEPHEN CHAMAPARAMPIL RESPONDENT(S): ------------------------ 1. RAMACHANDRAN PILLAI, MANNADICKAL VEETTIL, CHERIYANADU EAST MURI, CHERIYANADU VILLAGE, CHENGANNUR TALUK. 2. AJITH KUMAR, S/O. RAMACHANDRAN PILLAI -DO- -DO- 3. ANIL KUMAR, S/O. RAMACHANDRAN PILLAI -DO- -DO- 4. GOPALAKRISHNA PILLAI, AGED 61 YEARS, S/O. NARAYAN PILLI, VIRUTHIPARAMBIL, VENMONY THAZHAM MURI, VENMONY VILLAGE. 5. CHANDRAN PILLAI, S/O. NARAYANA PILLAI -DO- -DO- 6. RETNAMMA, D/O. JANAKIAMMA, PERIYEDATHU VEETTIL THRIPPERUMTHURA KIZHAKKUM MURI THRIPPERUMTHURA VILLAGE. 7. RATHEEDEVI, AGED 42 YEARS, W/O. KARUNAKARAN PILLAI, KARUNALAYAM IKKAD, KODUMON, PATHANAMTHITTA DISTRICT. ...2/- FAO.No. 328 of 2009() -2- 8. ANIL KUMAR (MINOR) S/O. RATHEEDEVI (D7) -DO- -DO- R2, R3, R5 TO R7 BY ADVS. SRI.P.B.SAHASRANAMAN SRI.T.S.HARIKUMAR SRI.K.JAGADEESH R4 BY ADV. SMT.ASHA ELIZABETH MATHEW THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 15/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn THOTTATHIL B. RADHAKRISHNAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 328 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of November, 2010. JUDGMENT Thottathil B. Radhakrishnan, J, This appeal is against an order refusing to restore a suit for specific performance of an alleged contract for sale. That order was consequential on the refusal to condone the delay in filing the application for restoration. We have seen the application for condonation of delay and the affidavit filed in support thereof. After the dismissal of the suit, according to the plaintiff, there was an attempt for negotiation and out of court settlement and the application for restoration was filed when that did not come through. This version appears to be probabilised by the fact that there was yet another suit, O.S. 155 of 2008, for partition between the defendants. It is stated that initially the appellant was also a party to that suit. However, he was removed from the party array at the instance of the plaintiff therein. It is also stated that an FAO.328/2009. 2 application for joint trial of that suit along with O.S. 136 of 2008, from which this appeal arises, was also dismissed. 2. We also find that by the order dated 27.6.2009 dismissing the application to condone the delay, the court below did not really consider the ground projected in the application for condonation of delay. The reason stated as referable to the attempt to settle the matter out of court was not found against. The mere fact that O.S. 155 of 2008, to which the appellant is not a party now, stands decreed does not tilt the scales against the appellant. Under this circumstance, the application for condonation of delay and the application for restoration of the suit deserve to be allowed. We set aside the orders dated 27.6.2009 in I.A. 310 of 2009 and I.A. 311 of 2009. We consequently allow I.A. Nos. 310 and 311 of 2009 on condition that the appellant will pay to the respondents appearing through their counsel before this court a sum of Rs.2,500/- towards costs within two weeks from today and FAO.328/2009. 3 file a memo before the court below. Parties will appear before the court below on 04.01.2011. Thottathil B. Radhakrishnan, Judge P. Bhavadasan, Judge sb.