FAO No.70 of 2016

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` WEDNESDAY, THE 19[TH] DAY OF JULY 2023 / 28TH ASHADHA, 1945 ``` ``` FAO NO.70 OF 2016 ``` ``` AGAINST THE ORDER DATED 15.09.2015 IN I.A NO.2953 OF 2014 AND I.A.NO.2954 OF 2014 IN O.S NO.3 OF 1999 ON THE FILE OF THE 1ST ADDITIONAL DISTRICT COURT, THRISSUR APPELLANT/PETITIONER/PLAINTIFF: ``` - **`*1 K.L.POLY, PROPRIETOR, "KALAN NELLAYI", S/O.KALATHU VEETIL LONAPPAN, PARAPPUKARA VILLAGE, NELLAYI DESOM, P.O.NELLAYI, MUKUNDAPURAM TALUK. *(DECEASED)`** - **`2 ADDL.A2:SMT.P.C.MOLY, W/O.LATE K.L.POLY, AGED 52 YEARS, RESIDING AT KALATH HOUSE, NELLAYI P.O. 680 305, THRISSUR DISTRICT, KERALA.`** - **`3 ADDL.A3:MR.BRITTO K.P., S/O.LATE K.L.POLY, AGED 31 YEARS, RESIDING AT KALATH HOUSE, NELLAYI P.O. 680 305, THRISSUR DISTRICT, KERALA.`** - **`4 ADDL.A4:MR.CHRISTO POLY, S/O.LATE K.L.POLY, AGED 26 YEARS, RESIDING AT KALATH HOUSE, NELLAYI P.O. 680 305, THRISSUR DISTRICT, KERALA.`** - **`5 ADDL.A5:MR.DITTO POLY, S/O.LATE K.L.POLY, AGED 21 YEARS, RESIDING AT KALATH HOUSE, NELLAYI P.O. 680 305, THRISSUR DISTRICT, KERALA..`** - **`*THE LEGAL HEIRS OF THE DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 5 AS PER ORDER DATED 17.03.2023 IN I.A.NO.1 OF 2021 IN FAO NO.70 OF 2016.`** ``` 2 ``` F.A.O No.70 of 2016 ## **`BY ADVS.`** ``` SRI.JOHN MATHEW SRI.VINU SASIDHARAN MATHEW JOHN ``` ## **`RESPONDENTS/RESPONDENTS/DEFENDANTS:`** - **`1 K.P.JOSE, AGED 59 YEARS PARTNER "KALAN HERBAL PRODUCTS”, S/O.KALATHU PAVUNNY, NELLAYI DESOM, PARAPPOOKARA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.`** - **`2 K.P.ANTONY, AGED 57 YEARS PARTNER "KALAN HERBAL PRODUCTS”, S/O.KALATHU PAVUNNY, NELLAYI DESOM, PARAPPOOKARA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.`** - **`3 K.P.VARGHESE, AGED 53 YEARS PARTNER "KALAN HERBAL PRODUCTS”, S/O.KALATHU PAVUNNY, NELLAYI DESOM, PARAPPOOKARA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.`** - **`4 K.P.JAMES, AGED 55 YEARS PROPRIETOR, "KALANS PRODUCTS”, S/O.KALATHU PAVUNNY, NELLAYI DESOM, PARAPPOOKARA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.`** - **`5 K.P.GEORGE, AGED 78 YEARS PROPRIETOR, "KALAN AYURVEDA PHARMACEUTICAL", PARAPPUKARA VILLAGE, ANANDAPURAM DESOM, MUKUNDAPURAM TALUK.`** - **`6 JOJU THOMAS, AGED 50 YEARS MANAGING PARTNER "RANI DRUGS HOUSE", PARAPUKKARA VILLAGE, PONKATHRA VILLAGE, PONKATHRA DESOM, MUKUNDAPURAM TALUK.`** - **`7 MARY, AGED 62 YEARS W/O.KALATHU JOSE, PARAPPUKARA VILLAGE, NELLAYI DESOM, MUKUNDAPURAM TALUK.`** - **`8 THANKAMMA JHONY, AGED ABOUT 65 YEARS W/O.KALATHU JOHNY, PARAPPUKARA VILLAGE, NELLAYI DESOM, MUKUNDAPURAM TALUK.`** ``` 3 ``` F.A.O No.70 of 2016 - **`9 SHEELA, AGED 42 YEARS`** - **`D/O.KALATHU JOHNY, W/O.PARAPULLY VEETTIL BABU, PARAPPUKARA VILLAGE, NELLAYI DESOM, MUKUNDAPURAM TALUK.`** - **`10 USHA, AGED 40 YEARS D/O.KALATHU JOHNY AND W/O.THOTTAN BABU(AVENUE BOUTIQUE, 4TH AVENUE ROAD, CHELAKOTTUKARA, THRISSUR-680 005), PARAPPUKARA VILLAGE, NELLAYI DESOM, MUKUNDAPURAM TALUK.`** - **`11 BINDHU, AGED 38 YEARS D/O.KALATHU JOHNY, W/O.THOTTAN BABU, (AVENUE BOUTIQUE, 4TH AVENUE ROAD, CHELAKOTTUKARA, THRISSUR-680 005), PARAPPUKARA VILLAGE, NELLAYI DESOM, MUKUNDAPURAM TALUK.`** - **`12 SINDHU, AGED 36 YEARS D/O.KALATHU JOHNY AND W/O.ARAKKAL VELUKKARAN JOSHY, (BETHEL LANE, MISSION QUARTERS, NEAR SAGAR BAVAN, THRISSUR-680 001), PARAPPUKARA VILLAGE, NELLAYI DESOM, MUKUNDAPURAM TALUK.`** - **`13 JOSINTO, AGED 40 YEARS S/O.KALATHU ANTO, PARAPPUKARA VILLAGE, NELLAYI DESOM, MUKUNDAPURAM TALUK.`** - **`14 ROSEENA, AGED 30 YEARS`** - **`D/O.KALATHU ANTONY, PARAPPUKARA VILLAGE,`** - **`NELLAYI DESOM, MUKUNDAPURAM TALUK.`** ``` BY ADVS. ``` ``` SRI.K.G.BALASUBRAMANIAN – R13 ``` ``` SRI.SABU GEORGE – R4 ``` ``` SRI.SAIGI JACOB PALATTY – R1 TO R3 ``` ``` SRI.G.SHRIKUMAR(SR)- R8 TO R12 ``` ``` SRI.ANIL VINCENT - R8 TO R12 ``` ``` THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 19.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 4 ``` F.A.O No.70 of 2016 ## **J U D G M E N T** ## Anil K. Narendran, J. The appellant is the plaintiff in O.S.No.3 of 1999 on the file of the 1[st] Additional District Court, Thrissur, which was one filed against the respondents-defendants, under Section 105 of the Trade and Merchandise Marks Act, 1958, for an injunction against passing off the goods by the defendants. On 22.02.2012, when the case was listed before the First Additional District Court, the plaintiff was absent. Therefore, the District Court adjourned the matter to 29.02.2012, on which date, the suit was dismissed for default. The plaintiff filed I.A.No.2953 of 2014, invoking the provisions under Order IX Rule 9 of the Code of Civil Procedure, 1908, seeking an order to restore the suit to file. The said application was supported by I.A No.2954 of 2014, filed under Section 5 of the Limitation Act, 1963, to condone the delay of 895 days in filing the former application. Defendants 8, 10, 11 and 12 have opposed those applications by filing counter. The 14[th] defendant has also filed counter. After considering the rival contentions, the court below by a common order dated 15.09.2015, dismissed those interlocutory applications. Feeling aggrieved, the appellant- ``` 5 ``` F.A.O No.70 of 2016 plaintiff is before this Court in this appeal, invoking the provisions under Order XLIII Rule 1(d) of the Code of Civil Procedure. 2. On 11.03.2016, when this appeal came up for admission, this Court admitted the matter on file and issued notice to the respondents by special messenger. By the order dated 11.03.2016, Registry was directed to call for a copy of the proceedings/B Diary in O.S.No.3 of 1999 on the file of the 1[st] Additional District Court, Thrissur, by special messenger. 3. Heard the learned counsel for the appellant-plaintiff and also the respective counsel for respondents 1 to 3, 4[th] respondent, respondents 8 to 12 and also the 13[th] respondent. 4. The issue that arises for consideration in this appeal is as to whether any interference is warranted in the impugned order dated 15.09.2015 of the 1[st] Additional District Court, Thrissur, whereby I.A.Nos.2953 of 2014 and 2954 of 2014 filed by the appellant-plaintiff to restore O.S.No.3 of 1999, which was dismissed for default on 15.09.2015, and also to condone the delay of 895 days in filing the application for restoration, stand rejected for the reasons stated therein. 5. The learned counsel for the appellant-plaintiff would ``` 6 ``` F.A.O No.70 of 2016 contend that though sufficient cause has been shown for the absence of the plaintiff on 22.02.2012 and 29.12.2012 before the Additional District Court, when O.S.No.3 of 1999 came up for consideration, and also for the delay that occurred in filing the application for restoration, the said court dismissed those interlocutory applications without any valid reason. Therefore, the impugned order warrants interference in this appeal. 6. On the other hand, the learned counsel for the respondents would contend that in the absence of any sufficient cause shown by the plaintiff, the 1[st] Additional District Court rejected both the interlocutory applications filed by the plaintiff. The reasoning of the said court in the impugned order cannot be said to be either arbitrary or illegal, warranting interference in this appeal. 7. The learned counsel for the 13[th] respondent has addressed arguments, with reference to the proceedings in A.S.Nos.355 of 2000 and 483 of 2000 arising out of the judgment and decree in O.S.No.3 of 1997. The learned counsel for the appellant-plaintiff has also addressed arguments on that issue. We do not propose to consider those arguments in this appeal and the contentions raised by both sides are left open ``` 7 ``` F.A.O No.70 of 2016 to be raised before the appropriate court, at the appropriate stage. 8. The reasoning of the court below as contained in paragraph 10 of the impugned order dated 15.09.2015 in I.A.Nos.2953 and 2954 of 2014 in O.S.No.3 of 1999 reads thus: “Point No.1:- As contended by the respondent's side, petitioner was aware of the disposal of AS 355/2000 and AS.483/2000 as well as O.S.3/1997. In fact, the petitioner had suffered verdict against him in the aforesaid appeals and he had moved the Hon'ble Supreme Court for a Special Leave Petition. Petitioner himself would admit that he did not engage another counsel to prosecute the suit though his counsel had died in the year 2010. The first defendant died in the year 2011. Petitioner did not take any steps. The suit was disposed only on 29.02.2012. These facts would make it clear that petitioner was not serious in prosecuting O.S.3/1999. In fact the verdict in AS 355/2000 and AS.483/2000 have bearing upon the decision in O.S.3/1999. This was known to the petitioner. So, the laches was really on the side of the petitioner. The very fact that the petitioner had been prosecuting the appeals would make it clear that he had no illness of any sort as to disable him from attending the suit and prosecuting his case. Laches was on his side. One has to explain each and every day's delay as to get a favourable order u/s.5 of the Limitation Act. The petitioner had not brought in any evidence to find any genuine reason to explain the delay. The objections raised by the ``` 8 ``` F.A.O No.70 of 2016 respondents are well founded. The point is therefore decided against the petitioner.” 9. Order IX, Rule 9 of the Code provides that decree against plaintiff by default bars fresh suit. As per sub-rule (1) of Rule 9, where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the court - that there was sufficient cause for his non appearance when the suit was called on for hearing, the court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. As per sub-rule (2) of Rule 9, no order shall be made under this rule unless notice of the application has been served on the opposite party. 10. Order IX, Rule 13 of the Code provides for setting aside decree _ex parte_ against defendant. As per sub-rule (1) of Rule 13, in any case in which a decree is passed _ex parte_ against a defendant, he may apply to the court which the decree was passed for an order to set it aside; and if he satisfies the court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the ``` 9 ``` F.A.O No.70 of 2016 suit was called on for hearing, the court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. As per the first proviso to sub-rule (1), where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also. As per the second proviso to sub-rule (1), no court shall set aside a decree passed _ex parte_ merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. As per the Explanation, where there has been an appeal against a decree passed _ex parte_ under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that _ex parte_ decree. ## 11. In **G.P. Srivastava v. R.K. Raizada [(2000) 3** **SCC 54]** in the context of an application filed under Order IX, Rule 13 of the Code, for setting aside an _ex parte_ decree, the ``` 10 ``` F.A.O No.70 of 2016 Apex Court held that, the word ‘was prevented by any sufficient cause from appearing’ occurring in Order IX, Rule 13 of the Code must be liberally construed to enable the court to do complete justice between the parties, particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order IX, Rule 13 of the Code has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. 12. In **G.P. Srivastava** , the Apex Court held further that, ‘sufficient cause’ for non-appearance refers to the date on which the absence was made a ground for proceeding _ex parte_ and cannot be stretched to rely upon other circumstances anterior in time. If ‘sufficient cause’ is made out for nonappearance of the defendant on the date fixed for hearing when _ex parte_ proceedings initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where defendant approaches the court immediately and within the statutory time specified, the discretion is normally exercised in ``` 11 ``` F.A.O No.70 of 2016 his favour, provided the absence was not malafide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the _lis_ decided on merits. ## 13. In **M. Shivananda v. M. Susheela and others** **[2021 (5) KHC 357]** a Division Bench of this Court in which one among us [Anil K. Narendran, J] was a party held that, Order IX, Rule 9 of the Code of Civil Procedure enables the court to set the dismissal aside, if the plaintiff satisfies the court that - there was sufficient cause for his non appearance when the suit was called on for hearing. On the other hand, Order IX, Rule 13 of the Code enables the court which passed a decree _ex parte_ to set it aside, if the defendant satisfies the court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing. Therefore, the principle laid down by the Apex Court in **G.P. Srivastava [(2000) 3 SCC 54]** , in the context of an application filed under Order IX, Rule 13 of the Code, apply with equal force in the consideration of an application filed under Order IX, Rule 9 of the Code. ## 14. In **Peeves Enterprises v. Muhammed Ashraf** **[2015 (3) KHC 981]** , relying on the law laid down by the Apex ``` 12 ``` F.A.O No.70 of 2016 Court in **G.P. Srivastava** , a Division Bench of this Court in which one among us [Anil K. Narendran, J] was a party held that, on an application filed under Order IX, Rule 13 of the Code of Civil Procedure, the court has to find out whether the erring party has made out sufficient cause for setting aside the _ex parte_ decree. When no negligence or inaction is imputable to the erring party and the absence was not malafide or intentional, the discretion has to be exercised in his favour, especially when the application is within the statutory time limit. In appropriate cases, the plaintiff can be compensated by adequate costs for the loss of time and the inconvenience caused to him. But any such condition shall not be too onerous. 15. The Limitation Act, 1963 was enacted by the Parliament to consolidate and amend the law for the limitation of suits and other proceedings and for purposes connected therewith. Section 5 of the Act deals with extension of prescribed period in certain cases. As per Section 5, any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for ``` 13 ``` F.A.O No.70 of 2016 not preferring the appeal or making the application within such period. As per Explanation to Section 5, the fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this Section. 16. It is well settled that the Law of Limitation is founded on public policy to ensure that the parties to a litigation do not resort to dilatory tactics and seek legal remedy without delay. In an application filed under Section 5 of the Limitation Act, the court has to condone the delay if sufficient cause is shown. Adopting a liberal approach in condoning the delay is one of the guiding principles, but such liberal approach cannot be equated with a licence to approach the court-at-will disregarding the time limit fixed by the relevant statute. The acts of negligence or inaction on the part of a litigant do not constitute sufficient cause for condonation of delay. Therefore, in the matter of condonation of delay, sufficient cause is required to be shown, thereby explaining the sequence of events and the circumstances that led to the delay. ## 17. In **Collector, Land Acquisition v. Katiji [(1987)** ``` 14 ``` F.A.O No.70 of 2016 **2 SCC 107]** , in the context of Section 5 of the limitation Act, 1963, the Apex Court held that, the expression ‘sufficient cause’ employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner, which subserves the ends of justice, that being the life-purpose for the existence of the institution of courts. 18. In **Esha Bhattacharjee v. Raghunathpur Nafar Academy [(2013) 12 SCC 649]** the Apex Court while summerising the principles applicable while dealing with an application for condonation of delay held that, the concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play. The Apex Court held further that, there is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. Para.21 of the judgment reads thus; - “21. From the aforesaid authorities the principles that can broadly be culled out are: - 21.1 There should be a liberal, pragmatic, justiceoriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are ``` 15 ``` F.A.O No.70 of 2016 ## obliged to remove injustice. 21.2 The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation. 21.3 Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. 21.4 No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. 21.5 Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. 21.6 It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. 21.7 The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play. 21.8 There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. 21.9 The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. 21.10 If the explanation offered is concocted or the grounds urged in the application are fanciful, the ``` 16 ``` F.A.O No.70 of 2016 courts should be vigilant not to expose the other side unnecessarily to face such a litigation. 21.11 It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. 21.12 The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. 21.13 The State or a public body or an entity representing a collective cause should be given some acceptable latitude.” 19. In **Esha Bhattacharjee** , after summerising the principles applicable while dealing with an application for condonation of delay, the Apex Court added some more guidelines taking note of the present day scenario, that an application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. Para.22 of the judgment reads thus; “22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:— ``` 17 ``` F.A.O No.70 of 2016 22.1 An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. 22.2 An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. 22.3 Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto. 22.4 The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters.” ## 20. In **Rafeek and another v. K. Kamarudeen and** ## **another [2021 (4) KHC 34 : (2021) 2 RCR (Rent) 223 :** **2021 AIR CC 2752]** a Division Bench of this Court in which one among us [Anil K. Narendran, J] was a party held that, though the expression ‘sufficient cause’ employed in Section 5 of the Limitation Act, 1963 is adequately elastic to enable the courts to apply the law in a meaningful manner, which subserves the ends of justice, as held by the Apex Court in **Katiji [(1987) 2 SCC 107]** , the concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play, as held by the ``` 18 ``` F.A.O No.70 of 2016 Apex Court in **Esha Bhattacharjee [(2013) 12 SCC 649]** . Inordinate delay, which attracts doctrine of prejudice, warrants strict approach, whereas, a delay of short duration or few days, which may not attract doctrine of prejudice, calls for a liberal delineation. An application for condonation of delay should be drafted with careful concern and no court shall deal with such an application in a routine manner. 21. In terms of the direction contained in the order dated 11.03.2016 copy of the proceedings paper/B Diary in O.S.No.3 of 1999 on the file of the 1[st] Additional District Court, Thrissur is placed on record. From the proceedings sheet, it is seen that the suit was being adjourned from 06.12.2014 on account of the order of stay granted under Section 10 of the Code of Civil Procedure in I.A.No.2278 of 2004. On 22.02.2012, when the suit was taken up for consideration, the plaintiff was absent. The defendants reported that the order of stay has been vacated and pointed out the judgment of this Court dated 18.10.2011 in A.S.Nos.355 and 483 of 2000. The suit was adjourned to 29.02.2012, on which date it was dismissed for default. According to the plaintiff, the direction contained in the judgment of this Court dated 18.10.2011 was for time bound ``` 19 ``` F.A.O No.70 of 2016 disposal of O.S.No.3 of 1997, another suit between the same parties. The counsel for the plaintiff died on 06.10.2010 and the plaintiff could not engage another counsel since he was a cardiac patient and was undergoing treatment in Jubilee Mission Hospital, Mother Hospital and Amala Medical College, Thrissur and also Vellore Medical College. He came to know about the dismissal of O.S.No.3 of 1999 for default on 29.09.2012, only later and immediately thereafter, the applications were filed for restoration of the suit and for condonation of delay of 895 days in filing the application for restoration. 22. Having considered the arguments advanced by the learned counsel on both sides, in the light of the law laid down in the decisions referred to supra, we find that though the explanation offered by the appellant-plaintiff for condonation of delay in filing the application for restoration is not fully satisfactory, the delay of 895 days in filing I.A No.2953 of 2014 can be condoned on payment of costs, especially when the absence of the plaintiff before the court below on 22.02.2012 and 29.02.2012 cannot be said to be either malafide or intentional. ``` 20 ``` F.A.O No.70 of 2016 23. In such circumstances, this appeal is allowed by setting aside the common order dated 15.09.2015 in I.A Nos.2953 of 2014 and 2954 of 2014, on payment of a total cost of Rs.10,000/- payable to defendants 1 to 4, 8 to 12 and 13 at the rate of Rs.1,000/- each, within a period of two weeks from the date of receipt of a certified copy of the judgment. On such payment being made, I.A.No.2953 of 2014 for restoration of the suit will stand allowed, after condoning the delay of 895 days in filing the application for restoration, as sought for in I.A.No.2954 of 2014 thereby setting aside the impugned order dated 15.09.2015. Consequently, O.S.No.3 of 1999 will stand restored to file and the 1[st] Additional District Court, Thrissur shall proceed with the suit and dispose of the same, as expeditiously as possible, at any rate, within a period of four months. Both parties shall appear before the court below on **21.08.2023** . Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** PV