IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 3RD DECEMBER 2010 / 12TH AGRAHAYANA 1932 OP(C).No. 991 of 2010(O) ------------------------ OS.481/2004 of PRL.SUB COURT,THRISSUR .................... PETITIONER: -------------------- K.A.KHALID, S/O.KARIMBAPUNATHIL ABOOBACKER, VATAKARA AMSOM, VATAKARA TALUK. BY ADV. SRI.P.B.KRISHNAN SRI.ZUBAIR PULIKKOOL RESPONDENT: --------------- K.B.VIJAYAKUMAR,S/O.BALAN KARANDAYIL HOUSE, KARUVANNUR VILLAGE, ETTUMANA DESOM, THRISSUR. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 03/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.991 of 2010 --------------------------------------- Dated this 03rd day of December, 2010 JUDGMENT Respondent made a claim for payment of money against petitioner based on a demand promissory note allegedly executed by the latter and the claim was replied by petitioner denying that there was any such transaction or demand promissory note executed by him. Respondent moved the court and filed O.S.No.451 of 2004. Petitioner is said to have engaged one Pradeep (who, it is said by petitioner was latter involved in vigilance cases) to defend his case and petitioner was under the impression that counsel is taking necessary steps to defend him. Later when petitioner got notice of the execution he made enquiries and learned that ex parte decree was passed against him on 21-02-2005 for failure to file written statement. Petitioner filed Exts.P2 and P3, applications on 18-02-2008 (through another counsel) to set aside the ex parte decree and to condone the delay of more than 1000 days in filing Ext.P2, application stating about the circumstances under which ex parte decree happened to be passed and how he learned about that. Exts.P2 and P3, applications are dismissed for default on 25-10-2008. O.P(C).No.991 of 2010 : 2 : Petitioner filed Ext.P4, application for restoration of Ext.P2, application (with no prayer for restoration of Ext.P3, application) on 30-10-2005 supported by the affidavit of counsel who stated that to make necessary representation on Ext.P2, application he had entrusted the matter to a junior Advocate who inadvertently omitted to represent when the case was called. Ext.P4, application was again dismissed for default on 18-05-2010. That was followed by Ext.P5, application filed on 14-06-2010 for restoration of Ext.P4, application which again was dismissed for default on 18-05-2010. In the affidavit in support of that application petitioner stated that he was laid up on 18-05-2010 and hence could not attend the court. Ext.P5, application was dismissed on 05-08-2010, again for default. Then came Ext.P6, application filed on 03-09-2010 for restoration of Ext.P5, application. That application was again dismissed, this time allegedly due to the mistake of the clerk concerned in noting the date (but, affidavit does not say which other day was noted by the clerk). When Ext.P6, application was dismissed petitioner filed I.A.Nos.7972, 7945 of 2010 for restoration of Ext.P6, application and to condone the delay. Those applications were dismissed by the learned Sub Judge as per Ext.P7, order stating that on the O.P(C).No.991 of 2010 : 3 : facts and circumstances of the case, request cannot be allowed. Ext.P7, order is under challenge. Learned counsel made a fervent plea pointing out that here is a case right from the beginning petitioner had denied claim of respondent and execution of demand promissory note and in the circumstances petitioner may be given opportunity to contest the case on merit. It is also pointed out by learned counsel that non filing of the written statement was due to the default of the lawyer who did not care to file written statement or inform the party about that. 2. Petitioner has a case that he happened to entrust his case to Adv.Pradeep who was latter booked by the vigilance as petitioner would say. That much is understandable. But, what happened thereafter was something which cannot be justified or easily digested. It is not as if one or two applications were dismissed for default for some reason or other. In the present case a number of applications subsequently filed were dismissed for default and ultimately after about six years of passing the decree, I.A.Nos.7972, 7945 of 2010 were filed with an attempt to resurrect the earlier applications so that, petitioner could get the ex parte decree and try to set aside. I find from the affidavit in support of the respective applications that every time some O.P(C).No.991 of 2010 : 4 : excuse or the other is stated by petitioner for the default. On one time he stated that on 18-05-2010 he was laid up. Petitioner is aged 42 years. He did not adduce any medical certificate for supporting Ext.P5, application to show that he was ill. In such a situation, court cannot help this litigant. “Vigilantibus, non dormientibus, jura subveniunt” (The laws assist those who are vigilant, not those who sleep over their rights.)” This petition fails. It is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-