JUDGMENT

Dated this the 10th day of January, 2022 The petitioner is the 13th Additional defendant in O.S.No.146 of 2007 on the files of the Munsiff Court, Manjeri. The suit happened to be dismissed for default and the plaintiff filed applications for restoration, for condoning the delay of 976 days. The applications were dismissed for non-prosecution. Thereupon, petitioner filed another set of applications for restoring the application for restoration and condonation of delay. The second set of applications was rejected by Ext.P13 order.

2. Learned Counsel for the petitioner submitted that the petitioner’s absence, resulting in the suit being decreed ex parte and the reason for delay in filing the application was his illness. Referring to paragraph 6 of Ext.P13 order, it is submitted that the court below omitted to consider the medical records and passed the order on the wrong assumption that no scrap of paper was produced to explain the reason for the inordinate delay in filing the restoration application. Learned Counsel drew attention to Ext.P12, to contend that the medical records were produced on 28.11.2019 and the impugned order was passed only on 13.12.2019. It is contended that if the trial court had considered the records, the delay would have been condoned.

3. Learned Counsel for the first respondent raised strong objection and submitted that the casual and indifferent manner in which the petitioner had contested the suit and interlocutory applications had resulted in Ext.P13 order and even if the medical records are taken note of, that would not justify the inordinate delay in filing the application for restoration.

4. Having heard the learned Counsel and having considered the impugned order, I find that the court below had passed the order, irked by the fact that the petitioner failed to produce medical records in support of the claim that he was suffering from illness. As revealed by Ext.P12, the medical records were produced much prior to the impugned order. Hence, the basic premise on which the order was passed is wrong. Moreover, as held by the Hon’ble Supreme Court, attempt of the courts should be to provide opportunity to the parties to contest the suit on merits, rather than non-

suiting them on technicalities.

In the result, the Original Petition is allowed.

Ext.P13 order is set aside. O.S.No. 146 of 2007 of the Munsiff Court, Manjeri is restored to file, subject to the petitioner paying an amount of Rs.5,000/- (Rupees Five Thousand Only) as cost to the Counsel appearing for the first respondent before this Court within one month of a copy of this judgment and producing receipt evidencing such payment before the trial court.

Sd/-

V.G.ARUN JUDGE SJ APPENDIX OF OP(C) 504/2020 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S.146 OF

2007 DATED 04.O6.2007.

EXHIBIT P2 TRUE COPY OF THE COMMISSION REPORT DATED

30.07.2007 EXHIBIT P3 TRUE COPY OF THE COUNTERCLAIM FILED BY THE PETITIONER DATED 17.09.2012 EXHIBIT P4 TRUE COPY OF JUDGMENT DATED 15.03.2014 IN O.S.NO.146/07.

EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN ABOVE SUIT DATED 16.01.2015 IN O.S.146/07 EXHIBIT P6 TRUE COPY OF THE APPLICATION IN IA NO.2889/2017 IN O.S.146/07 EXHIBIT P7 TRUE COPY OF THE APPLICATION IN IA NO.2890/2017 IN O.S.NO.146/07.

EXHIBIT P8 TRUE COPY OF THE OBJECTION FILED BY THE PLAINTIFFS IN 2889/17 IN O.S.NO.146/07.

EXHIBIT P9 TRUE COPY OF THE OBJECTION FILED BY THE PLAINTIFFS IN 2890/17 IN O.S.NO.146/07.

EXHIBIT P10 TRUE COPY OF THE APPLICATION WIDE I.A.NUMBER 644 OF 2018 IN I.A.2889/18 IN O.S.146/07.

EXHIBIT P11 TRUE COPY OF THE APPLICATION AS IA NO.645/2018 IN I.A.2890/17 IN O.S.146/07.

EXHIBIT P12 TRUE COPY OF LIST OF DOCUMENTS FILED BY THE PETITIONER ON 28.11.2019 VIDE CF NO.7566/2019.

EXHIBIT P13 TRUE COPY OF COMMON ORDER IN I.A.NUMBER

644/2018 AND I.A.NUMBER 645/2018 DATED

13.12.2019.

EXHIBIT P14 TRUE COPY OF PETITION FOR EXECUTION VIDE EP NO.89/2017 DATED 12.03.2007.