IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 9TH JULY 2009 / 18TH ASHADHA 1931 FAO.No. 303 of 2006() --------------------- AGAINST THE ORDER IN IA 1187 2006 IN OS.153/1999 of SUB COURT, OTTAPPALAM .................... APPELLANT/PETITIONER/PLAINTIFF: --------------------------------------------------- SANTHAKUMARI AMMA, D/O.PERUMBILAVIL JANAKI AMMA, BY POWER OF ATTORNEY HOLDER HER HUSBAND P.V.K. UNNI NAIR, S/O.PARUTHIKKAD VEENOTTUR NAYARUVEETTIL KUNHIMALU NETHYAR, OTTAPALAM AMSOM, PALGHAT DISTRICT. BY ADV. SRI.K.V.SOHAN SMT.SREEJA SOHAN.K. SMT.SANJANA R.NAIR RESPONDENT(S): RESPONDENT/DEFENDANT: --------------------------------------------------------------- UNNIYANKUTTY, S/O.KALLINGAL AYAMUTTY, AMAYOOR AMSOM, DESOM, OTTAPPALAM,PALAGHAT DISTRICT ADV. SRI.P.N.RAVINDRAN FOR R1 SMT.PREETHY KARUNAKARAN FOR R1 SMT.MEENA.A. FOR R1 SMT.M.R.MINI FOR R1 SRI.JAYKAR.K.S. FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 02/07/2009, THE COURT ON 09/07/2009 DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 303 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of July, 2009. JUDGMENT Bhavadasan, J, The plaintiff, who had her petition for restoration of the suit dismissed, is the appellant. 2. The suit was one for recovery of damages for malicious prosecution. It is seen that the suit was listed for trial, the plaintiff was not present and therefore the suit was dismissed for default. Plaintiff filed I.A. 1187 of 2006 for restoration of the suit. The court below found no reasons to do so and accordingly dismissed the petition. The said order is assailed. 3. Learned counsel appearing for the appellant points out that there was no justification in the court below dismissing the application for restoration. It was pointed out that the suit was listed for trial on 6.6.2006. On 3.6.2006 the FAO.303/2006. 2 defendant in the suit filed I.A. 1019 of 2006 seeking adjournment on the ground that the judgment in C.C.61 of 1996 had been taken up in revision before this court in Crl.R.P.3047 of 2005. Pointing out that the judgment in C.C. 61/1996, which forms the basis of the suit had not become final, the adjournment was sought. Counsel for the plaintiff made known this fact to the plaintiff. The plaintiff would say that he honestly believed that the matter would be adjourned. However, the suit was taken up on 7.6.2006 and dismissed for default. It is also stated that the power of attorney holder of the plaintiff was also sick and therefore neither the plaintiff nor her power of attorney holder was present before the court. According to learned counsel, there was no wilful laches or negligence on the part of the plaintiff in not appearing in court on the day on which the suit was listed for trial. The omission was due to the circumstances mentioned above. 4. Though the cause for non-appearance on 7.6.2006 may appear to be very attractive, on a closer scrutiny, it can be FAO.303/2006. 3 found that there is no basis for the present claim. The suit was of the year 1999. Ten years have elapsed. It is seen from the records that the suit had come up in the list on an earlier occasion. Then also, the plaintiff was absent and the suit had been dismissed for default. The court below thereafter restored the same. This was the second occasion, on which the suit was listed for trial and the plaintiff had been absent. There was no reason for the plaintiff to believe that on the motion of the defendant the suit would be adjourned. It cannot be said that she bona fide believed that the suit will not be taken up on 6.6.2006. On 6.6.2006, when it was found that the plaintiff was absent, the suit was posted to 7.6.2006. It shows that the suit was not dismissed on the day on which it was listed for trial, but was adjourned to the next day to enable the plaintiff to appear before the court. At any rate, the plaintiff was represented by a counsel and there was no reason as to why the counsel could not make a motion for adjournment on behalf of the plaintiff. From the records, it would appear that neither the FAO.303/2006. 4 plaintiff nor her counsel had done anything in the matter to have the suit adjourned so as to enable the plaintiff to appear before court. Taken along with the fact that on an earlier occasion also the plaintiff had absented herself and the suit was dismissed for default indicates that the plaintiff is not very serious in prosecuting the suit. The reason given that since the judgment in C.C.61/1996 had not become final and therefore the plaintiff believed that the suit would be adjourned cannot be accepted. On 6.6.2006 when the suit was taken up, it was made clear by the court that it will not be adjourned, and had posted the case to 7.6.2006. In those circumstances, it was clear that it was to enable the plaintiff to appear on the next day so that trial could start. It is here that the absence of any representation on behalf of the counsel for the plaintiff assumes significance. The default on the part of the plaintiff to appear on the day on which the suit was listed for trial and on the next day could not be said to be due to the reasons beyond the control of the plaintiff. There was deliberate laches FAO.303/2006. 5 and omission n the part of the plaintiff. The suit has been protracted for a long time. The result is that there is no merit in this appeal and it is accordingly dismissed. There will be no order as to costs. P.R. Raman, Judge P. Bhavadasan, Judge sb.