IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 30TH JANUARY 2009 / 10TH MAGHA 1930 WP(C).No.3181 of 2009 (D) -------------------------------- AGAINST THE ORDER IN IA 1890/2008 IN OS.79/2006 of SUB COURT, PALA .................... PETITIONER: --------------- MATHEW, S/O JOSEPH, AGED 70 YEARS, PUTHENPURACKL, PARAMBRAM KARA, KADUTHURUTHY VILLAGE, VAIKOM TALUK, KOTTAYAM DIST. BY ADV. SRI.JOSEPH GEORGE RESPONDENTS: ------------------ 1. SEBASTIAN, S/O JOSEPH, PULICKATHADATHIL HOUSE, PARAPPALLY KARA, POOVARANY VILLAGE,MEENACHIL TALUK, KOTTAYAM DIST 2. JIJO, S/O. SEBASTIAN, PULICKATHADATHIL HOUSE, PARAPPALLY KARA, POOVARANY VILLAGE, MEENACHIL TALUK, KOTTAYAM DIST. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.3181 of 2009 ------------------------------------------------ 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/-