IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 3RD JUNE 2009 / 13TH JYAISHTA 1931 FAO.No. 197 of 2004() ------------------------------- AGAINST THE ORDER DATED 20/03/2004 IN IA 6423/2003 IN OS.106/2000 of ADDL. SUB COURT, THALASSERY .................... APPELLANT (S) /PETITIONER/PLAINTIFF: --------------------------------- PONNORAN VASU, S/O. KANARAN, AGED 57 YEARS, MANAGING DIRECTOR, BROTHERS ENGINEERING AND ERECTORS LTD., DOOR NO.1-108-3, IBRAHIMPATTANOM, VIJAYAWADA. BY ADV. SMT.DAISY THAMPI RESPONDENT(S): RESPONDENTS/DEFENDANT: ------------------------------- 1. KUNNUMBRON SREEDHARAN, S/O. KANARAN, AGED 47 YEARS, RISHA NIVAS, KANDAKUNNU AMSOM, KAITHERI DESOM, P.O. KAITHERI, KUTHUPARAMBU, KANNUR DISTRICT. 2. NELLIKKA LALITHA, W/O. KUNNUBRON SREEDHARAN, AGED 38 YEARS, NO OCCUPATION, RISHA NIVAS, KANDAKUNNU AMSOM, KAITHERI DESOM, P.O. KAITHERI, KUTHUPARAMBU, KANNUR DISTRICT. BY ADVS. MR.A.MOHAMED MUSTAQUE FOR R1 & R2 MR.KAUSER EDAPPAGATH FOR R1 & R2 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 03/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. -------------------------------------------------------- FAO NO.197 OF 2004 -------------------------------------------------------- Dated 3rd June 2009 Judgment BHAVADASAN, J. The plaintiff in OS No.106/00 and the petitioner in IA No.6428/03 on the file of the Sub Judge, Thalassery is the appellant. The suit was one for declaring that the power of attorney alleged to have executed by the plaintiff in favour of the 1st defendant in front of Notary Public Advocate K.Ramakrishnan, Thalassery on 3.11.93 and referred in Assignment Deed bearing No.964/95 and any document executed by the defendants on the strength of the Deed No.964/95 as null and void. The suit was listed for trial on 12.11.2003. On that day, the petitioner was absent. Therefore, the suit was dismissed for default. Soon thereafter, the plaintiff filed an IA for restoration of the suit to file. The respondent opposed the application. The court below after considering the materials before it, found that there was no bona fides in the case of the plaintiff and there was no sufficient cause FAO 197/04 2 for his absence on the day the suit was listed. So the court declined to restore the same. 2. On an earlier occasion also, the case was dismissed for default and restored to file. 3. Whatever be that, it is seen that the petitioner has produced a medical certificate which shows that he was ill and suffering from cardiac problem. There was no case for any body that the medical certificate is not a genuine one. On considering the various aspects, it is felt that the court below though not unjustified in rendering the impugned decision, that an opportunity need be given to the plaintiff to have his suit be decided on merits. 4. In the result, this appeal is allowed. The impugned order is set aside. The suit shall be restored to file and the matter shall be disposed of in accordance with law. The plaintiff shall pay Rs.1,500/- to the respondent within one month from today failing FAO 197/04 3 which the appeal will stand dismissed. The parties shall appear before the court below on 06.07.2009. P.R.RAMAN, JUDGE P.BHAVADASAN, JUDGE sta FAO 197/04 4