IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 3181 of 2009(D)
1. MATHEW, AGED 70 YEARS,
... Petitioner
Vs
1. SEBASTIAN, S/O JOSEPH,
... Respondent
2. JIJO, S/O. SEBASTIAN,
For Petitioner :SRI.JOSEPH GEORGE
For Respondent : No Appearance
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :30/01/2009
O R D E R
K.P.BALACHANDRAN, J.
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W. P. C. No.3181 of 2009
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Dated this the 30th day of January, 2009
JUDGMENT
Heard the counsel for the petitioner.
2. The petitioner is the plaintiff in
O.S.79/06 on the file of the Sub Court, Pala.
The suit was one for recovery of damages to
the tune of Rs.5,12,500/- from the
respondents. When the suit came up for trial
in the list, plaintiff did not appear and his
counsel reported no instructions. Consequently,
the court below dismissed the suit. A
restoration petition was filed and it was
allowed by the court below vide Ext.P4 order
on condition of the petitioner paying cost of
Rs.5,000/- directly to the respondents and
producing receipt within fifteen days.
3. The grievance of the petitioner is
that the suit itself was instituted as an
indigent person and the petitioner is unable
W. P. C. No.3181 of 2009 -2-
to pay cost of Rs.5,000/- which is an
exorbitant amount as far as he is concerned
and that inasmuch as such a condition is
attached to the order allowing Ext.P3
restoration application, it tantamounts to
dismissal of the restoration petition.
4. The petitioner who has not appeared
when the suit was in the list and no
instruction also was given to his lawyer
either for conduct of the case or to report
before court as to why he is absent, the
attempt of the petitioner/plaintiff cannot but
be taken as an attempt to get the trial of the
suit adjourned. The petitioner cannot be
allowed to have the suit restored without
payment of any cost to the respondents though
however, I am of the view that Rs.5,000/-
ordered as cost is excessive.
5. In the result, I reduce the amount of
cost from Rs.5,000/- to Rs.1,500/- and grant
W. P. C. No.3181 of 2009 -3-
one week’s time to pay the cost and produce
receipt in the court below. On no ground will
any further extension or enlargement of time
be granted for deposit of the said amount. The
petitioner is directed to produce a copy of
this judgment in the court below forthwith
with notice to the counsel for the defendant
in the court below as this Writ Petition is
being disposed of without notice to the
respondents.
6. Issue copy of this judgment to the
counsel for the petitioner urgently.
K.P.BALACHANDRAN,
JUDGE
kns/-