JUDGMENT :

P.G. AJITHKUMAR, J.

1. The appellant is the plaintiff in O.S. No. 461 of 2013 on the files of the Subordinate Court, Ernakulam. The suit along with counter-claim was scheduled for trial including in the special list on 23.05.2017. The appellant was absent on that day and hence the Court dismissed the suit for default and passed an ex-parte decree in the counter-claim. The appellant filed Interlocutory Application No. 3862 of 2017 for restoring the suit on file and Interlocutory Application No. 3861 of 2017 to condone the delay of 51 days. Both the applications were dismissed as per a common order dated 07.11.2017. This appeal has been preferred, challenging the said order.

2. The suit was instituted for a decree directing the respondents by way of a mandatory injunction to convey the proportionate undivided share in the plaint schedule property in terms of an agreement executed between the parties on 15.03.2006. The appellant constructed an apartment complex in the property as per the said agreement and following the dispute arose with respect to the sale of proportionate share in the land where the construction was effected, the suit was filed. The suit was originally filed against one Sri. Pradeepan. He died and his legal representatives were impleaded, who are respondents 1 to 4 herein. The respondents 5 and 6 are subsequent purchasers. The respondents filed written statements disputing the appellant's right to get the conveyance deed executed. They also filed counter-claim for realisation of compensation on account of the delay caused in completing the construction.

3. The appellant would contend that he, being an aged man having ailments, was unable to attend the court on 23.05.2017. He suffered a stroke and was undergoing follow up treatment. The learned counsel appearing for the appellant therefore contended that for the delay as well as non appearance on 23.05.2017, there was sufficient cause.

4. The learned counsel appearing for respondents 1 to 4 as well as respondents 5 to 6 would submit that the suit was dismissed for default on 23.05.2017, not for the first time. Earlier occasions also the suit was dismissed for default and the counter-claim decreed ex-parte. Thus they contended that at no point of time, the appellant was diligent in conducting the case and there is absolutely no reason for allowing the applications.

5. It is an undisputed fact that in 2016, the suit was dismissed for default and the counter-claim decreed ex-parte. At that time the suit was restored on the file and the ex-parte decree in the counter-claim set aside accepting the appellants' contentions that he was unable to attend the court on account of the bodily infirmities in connection with the stroke. Thereafter, the case was listed for trial on 03.03.2017. On that day, the appellant did not appear before the court and got the case adjourned, producing a medical certificate dated 01.03.2017. The case was again taken up for trial on 23.05.2017 and the appellants failed to turn up resulting in passing of the default order/decree.

6. The learned counsel appearing for the appellant placing reliance on the decisions Robin Thapa vs. Rohit Dora, (2019) 7 SCC 359, Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy and Others, (2013) 12 SCC 649, State (NCT of Delhi) vs. Ahmed Jaaan, (2008) 14 SCC 582 and Sangeetha vs. Shibu K.K. 2019 KHC 219 contended that the order dismissing I.A. No. 3862 of 2017, which was one for restoring the suit on file, and I.A. No. 3861 of 2017, one for condonation of delay, is wrong and liable to be reversed. The learned counsel appearing for respondents 5 and 6, on the other hand, relying on Raj Kishore Pandey vs. State of Uttar Pradesh and Others, (2009) 2 SCC 692 contended that there was total inaction and negligence on the part of the appellant, and therefore, the learned Sub Judge rightly had dismissed the application.

7. Order IX, Rule 8 of the Code of Civil Procedure, 1908 deals with procedure