Appeal against dismissal of an application to restore a suit dismissed for default. This court set aside the lower court's cryptic dismissal due to lack of effective challenge to the affidavit's averments, restoring the suit.
The impugned order is set aside, the suit is restored to file, and the lower court is directed to dispose of the case within six months.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
&
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
WEDNESDAY, THE 3RD DAY OF FEBRUARY 2016/14TH MAGHA, 1937
FAO.No. 182 of 2013 ()
AGAINST THE ORDER/JUDGMENT IN I.A.4485/10 IN O.S.19/08 OF PRINCIPAL SUB COURT, KOTTAYAM DATED 29.06.2012
APPELLANT(S)/PLAINTIFF:
THOMAS ABRAHAM S/O.ABRAHAM, RESIDING AT KOORAMATTOM GANDHI NAGAR P.O., MUDIYOORKARA KARA PERUMBAIKKADU VILLAGE, KOTTAYAM DISTRICT REPRESENTED BY HIS POWER OF ATTORNEY HOLDER SMT.MARY JOSE W/O.JOSE, AGED 59 YEARS, PULIKALAYIL HOUSE MADAKATHANAM P.O, VAZHAKULAM, ERNAKULAM DISTRICT.
BY ADV. SRI.ENOCH DAVID SIMON JOEL
RESPONDENT(S)/DEFENDANT:
T.A ANTONY S/O.ANTONY, THURUTHEL HOUSE, VADAVATHOOR P.O. NATTASSERI, VIJAYAPURAM VILLAGE KOTTAYAM DISTRICT - 686 010
R1 BY ADV. SRI.SIBY CHENAPPADY R1 BY ADV. SMT.ANU GEORGE R1 BY ADV. SRI.C.JOSEPH JOHNY
THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 03-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
APPENDIX IN FAO.182/13.
APPELLANTS' EXHIBITS:
/TRUE COPY/
PS TO JUDGE
ANTONY DOMINIC & A. HARIPRASAD, JJ.
F.A.O.No.182 of 2013
----------------------------------Dated this the 3rd day of February, 2016
JUDGMENT
Hariprasad, J.
The order impugned in this appeal is passed by the Principal sub Judge, Kottayam in I.A.4485/10 in O.S.19/08. Appellant is the plaintiff in the above suit, which was dismissed for default. The appellant approached the court below with a petition under Order IX Rule 9 CPC requesting the court to restore the suit. The affidavit filed in support of the petition shows that the appellant, at that particular time, was working at Dubai; he could not procure air ticket to come to his native place and therefore, he could not appear on the date when the case was listed for trial.
Heard learned counsel for the appellant. Counsel for the appellant submits that in spite of stating sufficient reasons in the affidavit filed along with the order IX rule 9 petition, the court below dismissed the petition holding that there is no evidence adduced to support the reasons. There is no
FAO.182/13
2
challenge against the averments in the affidavit. We are of the view that the cryptic order passed by the court below is not sustainable in the light of the fact that there is no effective challenge against the averments in the affidavit Therefore, the order is set aside. The suit is restored to file. The court below is directed to dispose of the case as expeditiously as possible, at any rate within a period of six months. Parties are directed to appear before the court below on 3.3.2016.
Appeal is disposed of accordingly.
A. HARIPRASAD, Judge.
kkb.
1 issue framed by the court
Whether the dismissal of an application to restore a suit dismissed for default, despite sufficient reasons stated in the affidavit, was sustainable.
1 provisions across 1 enactments
THOMAS ABRAHAM S/O.ABRAHAM
T.A ANTONY S/O.ANTONY
ANTONY DOMINIC
A. HARIPRASAD
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
