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.
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F.A.O. NOS. 30 & 31 OF 2008
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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/-