High Court Kerala High Court

Abraham Thomas vs Valsamma Jacob on 10 August, 2009

Kerala High Court
Abraham Thomas vs Valsamma Jacob on 10 August, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

FAO.No. 30 of 2008()


1. ABRAHAM THOMAS ,AGED 80 YEARS
                      ...  Petitioner

                        Vs



1. VALSAMMA JACOB, W/O. JACOB JOSEPH
                       ...       Respondent

2. JOBY JACOB,S/O.JACOB JOSEPH

3. JEENA,D/O.JACOB JOSEPH

4. VINAYA,D/O.JACOB JOSEPH

                For Petitioner  :SRI.H.B.SHENOY

                For Respondent  :SRI.P.C.HARIDAS

The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.BHAVADASAN

 Dated :10/08/2009

 O R D E R
               P.R. RAMAN & P. BHAVADASAN, JJ.
               = = = = = = = = = = = = = = = = = = =
                   F.A.O. NOS. 30 & 31 OF 2008
                     = = = = = = = = = = = = =
       DATED THIS, THE 10TH DAY OF AUGUST, 2009.

                          J U D G M E N T

Bhavadasan, J.

Two applications for restoration of the suits were

dismissed by the court below. F.A. O. 30/2008 is directed against

the order dated 27.7.2007 in I.A. NO. 742 of 2007 in O.S. 60/2004

on the file of the Sub Court, Pala. F.A.O. 31/2008 is directed

against the order dated 27.7.2007 in I.A. 743/2007 in O.S. 55/2004

before the same Court.

2. In both the appeals, parties are same. The suits were

instituted for money. It is seen that the suits were posted for trial in

the special list on 3.11.2006 and on that day, the plaintiff was

unable to attend the court due to severe cardiac problem.

3. It appears that a Commissioner was deputed to take the

evidence of the plaintiff in both the suits. The case was posted for

taking evidence of the plaintiff by the Advocate Commissioner to

8.11.2006. But due to illness he was unable to depose to the

Commissioner on that day and the cases were posted to 27.11.2006.

F.A.O. NOS. 30 & 31/2008 2

On that day petitioner was bed ridden and he could not give

evidence before Commissioner. The Advocate Commissioner filed

an interim report on 27.11.2006 stating that he could not take

deposition of the plaintiff due to the non-co-operation of the

plaintiff. Accepting the report of the Advocate Commissioner, both

the suits were dismissed for default. Applications filed by the

plaintiff for restoration of the suits were also dismissed. Hence

these appeals.

4. It is seen that the plaintiff was given several opportunities

to adduce evidence in both the case. In fact, considering the ill-

health of the plaintiff, an Advocate Commissioner was also deputed

to take evidence. The plaintiff would say that he was unable to

depose even before the Commissioner because he was sick and bed

ridden. The court below refused to accept the plea that the plaintiff

was bed ridden and hence had dismissed the suits for default.

5. Learned counsel appearing on behalf of the appellant

pointed out that there was no willful default on the part of the

plaintiff and his non co-operation to give evidence was due to the

circumstances mentioned above. It is also stated that an opportunity

may be given to the plaintiff to adduce evidence in support of his

F.A.O. NOS. 30 & 31/2008 3

case.

6. Learned counsel appearing on behalf of the respondent, on

the other hand, pointed out that sufficient opportunities had already

been given to the plaintiff and he had failed to utilize the same.

According to him, it is very evident from the proceedings sheet that

the attempt of the plaintiff is to drag on the proceedings .

7. From the records, it is seen that the plaintiff was suffering

from heart ailment and he has produced a medical certificate which

shows that he was suffering from severe heart disease, he was

advised to take complete bed rest and to avoid mental and physical

stress till the surgery is done.

8. One should remember that the plaintiff has paid huge

amount as court fee and it is rather difficult to believe that he would

have simply absented from the court and from giving evidence. It

must also be noticed that from the order of dismissal on default,

there is no appeal. Further, due to the ill-health of the plaintiff, an

Advocate Commissioner was also deputed to take evidence of the

plaintiff on the application filed by himself, for which batta was also

paid. In spite of that he could not depose before the Commissioner

also due to his illness. It is inconceivable that the plaintiff would

F.A.O. NOS. 30 & 31/2008 4

have deliberately abstained from the court on the date on which the

suit was posted and also when the Commissioner had come to take

evidence. Further, the appellant later died and the Legal

Representatives have come on the party array. Considering the

nature of the suit and the fact that huge court fee has been paid and

considering the cause for default on the appellant’s part, we think it

is only appropriate that an opportunity is given to the additional

plaintiffs to have the suit decided on merits.

9. In the result, the appeals are allowed, the orders impugned

are set aside and the suits are restored to file; but with a direction to

dispose of the suit as expeditiously as possible, at any rate, within a

period of six months from the date of this order. The parties shall

appear before the court below on 14.9.2009.

P.R. RAMAN, JUDGE

P. BHAVADASAN, JUDGE.

KNC/-