IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 5TH APRIL 2010 / 15TH CHAITHRA 1932 CRP.No. 121 of 2010() ---------------------------------- LAR.177/2005 of III ADDL.SUB COURT, ERNAKULAM .................... REVN. PETITIONER(S): CLAIMANT/PETITIONER ---------------------------------- THOMAS S/O. ANTONY, RESIDING AT NO.-19, SKY LINE, SPRING FIELD, PADIVATTOM, EDAPPALLY NORTH, KOCHI-24,ERNAKULAM. BY ADV. SRI.S.ABDUL SALAM RESPONDENT(S): ---------------------------- 1. THE STATE OF KERALA, REP. BY SPECIAL TAHSILDAR (LA) NH-1, KAKKANAD, ERNAKULAM. 2. THE EXECUTIVE ENGINEER, NH-1, (BRIDGES DIVISION), KODUNGALLUR. R1 BY GOVERNMENT PLEADER MR.P.K.RAVIKRISHNAN THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 05/04/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss P.BHAVADASAN, J. ------------------------------------- CRP No. 121 of 2010-A ------------------------------------- Dated 5th April 2010 Order Aggrieved by the dismissal of LAR No.177/05 by the Sub Court, Ernakulam, the petitioner before the Court below has come up in revision. 2. The petitioner is the claimant in LAR No.177/05 before the Third Additional Sub Court, Ernakulam. Dissatisfied with the compensation awarded for the acquisition of land, the petitioner approached the Sub Court for enhancement of the compensation. The case was posted for evidence on 16.11.2006. The petitioner was unable to attend the Court on that day since he was liad up and was udergoing treatment for Hemiplegia from 28.10.2006 to 9.7.2009. So, the reference was dismissed for default. The petitioner field an application for setting aside the order and also another application for condonation of delay in filing it. When the matter came up for evidence, it was found that the medical certificate produced by the petitioner was of an Ayurvedic Physician, though he had claimed to have undergone allopathic treatment. 3. The petitioner submits that he is aged 67 years and has been under treatment for a long period. A copy of the restoration petition and the delay condonation petition are produced as Annexures CRP 121/10 2 A1 and A2 respectively. Copies of the impugned orders are produced as Annexure A4 series, which are assailed in this CRP. 4. The learned counsel for the petitioner pointed out that the Court below should have taken a lenient view in the matter and should have allowed the petitions. There was no reason to disbelieve the version of the petitioner and he had produced a medical certificate in respect of his claim. It is also contended that the Court below ought to have seen that by dismissing the petitions, the petitioner would have to suffer irreparable loss and injury. 5. The learned Govenrment Pleader, on the other hand, pointed out that it was not the first time that the petitioner was seeking restoration of the petition. On two earlier occasions also, the case was dismissed for default and the petitioner had filed restoration petitions on those two occasions. According to him, it is very evident that the petitioner was trying to protract the matter on one pretext or the other. So, the learned Government Pleader submits that the Court below was perfectly justified in dismissing the petitions filed by the petitioner. 6. It is not in dispute that the case was listed for trial to 16.11.2006. The claimant was absent and the reference was answered against him. He claims to have been undergoing treatment from October 2006 onwards and therefore, he stated that he could not contact his counsel. He claimed that his absence from Court was not CRP 121/10 3 wilful. Pointing out the injury that may be caused to him, he sought restoration of reference and in support of his claim, he also produced a medical certificate. The petitioner examined himself as AW1 and stated about his illness. He also stated the reasons for his non- appearance before the Court and that it was not wilful. 7. It may be true that on two earlier occasions, the petitions had been dismissed for the absence of the petitioner. The Court below has not chosen to disbelieve his version that he was ill, though it has stated that the petitioner was unable to substantiate his claim by producing documents of examination of the doctor. It may not be possible to think that the petitioner will wilfully abstain from the Court and take the risk of having his petition dismissed for default. So, this Court feels that one more opportunity should be given to the petitioner to have his case decided on merits, but only subject to compensation to the respondent for his laches. In the result, this Petition is allowed and the Sub Court Ernakulam is directed to take up LAR No.177/05 on file and dispose of the same on merits, on condition that the petitioner pays Rs.7,500/- (Rupees Seven Thousand Five Hundred only) as costs to the respondents within two weeks from the date of re-opening of the Court after the mid-summer vacation 2010. P.BHAVADASAN, JUDGE CRP 121/10 4 sta CRP 121/10 5