IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 29TH AUGUST 2008 / 7TH BHADRA 1930 W.P(C).No. 16241 of 2008(H) -------------------------- PETITIONER: ------------ PRADEEP, S/O. ACHUTHAN NAIR, HEMAMBIKA, KANIMANGALAM, NEMMARA, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.JACOB SEBASTIAN RESPONDENTS: ------------- 1. VENUGOPALAN, S/O. KANNANKUTTY NAIR, SREE LAKSHMI CHEDAYATHU VEEDU, KANIMANGALAM DESOM, NEMMARA, CHITTUR TALUK, PALAKKAD DISTRICT. * 2. RAMACHANDRAN, S/O. VAIDHYANADAYYAR, GURU PRIYA THADATTIL VEEDU, METHALA VILLAGE DESOM, KODUNGALLUR TALUK.(DELETED) BY ADV. SRI.A.K.MADHAVAN UNNI - R1 (*THE NAME OF THE 2ND RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER ORDER DATED 22/08/2008 IN I.A. NO. 10931/2008.) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C).No. 16241/2008 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : TRUE COPY OF E.A. NO.374/2005 IN E.P NO. 4/2002 OF THE COURT OF THE SUBORDINATE JUDGE OF PALAKKAD. EXHIBIT P2 : TRUE COPY OF THE COMMON ORDER IN E.A NOS. 540/2007 AND 539/2007 IN E.P.NO.4/2002 OF THE COURT OF THE SUBORDINATE JUDGE OF PALAKKAD. /TRUE COPY/ P.A. TO JUDGE M.SASIDHARAN NAMBIAR, J. ........................................... WP(C).No. 16241 OF 2008 ............................................ DATED THIS THE 29th DAY OF AUGUST, 2008 JUDGMENT Petitioner is the claim petitioner in E.P.4 of 2002 in O.S.320 of 1995 on the file of Sub Court, Palakkad. The claim petition was dismissed for default. Petitioner filed E.A.539 of 2007, an application under Section 5 of Limitation Act to condone the delay and E.P.540 of 2007, an application to restore the claim petition which was dismissed for default. According to petitioner, he was in Bombay in connection with his employment and therefore he could not appear before court when the claim petition was dismissed for default and also could not file the application in time and in such circumstances, delay is to be condoned and the claim petition is to be restored. Learned Sub Judge under Ext.P2 order, dismissed the application. Though petitioner was examined as PW1, he was not cross examined. But on the ground that claim petition was posted for evidence several times and petitioner did not adduce evidence and also did not produce materials to prove that he was in Bombay, the petitions were dismissed. This petition is filed under Article 227 of Constitution of India to quash Ext.P2 order. WP(C) 16241/2008 2 2. Learned counsel appearing for petitioner and respondent decree holder were heard. 3. The claim petition, E.A.374 of 2005 was dismissed for default on 21.6.2007. The petition to restore that application was filed after a delay of 46 days along with an application to condone the delay. True, petitioner has to establish sufficient cause to condone the delay as well as sufficient cause for his non appearance on 21.6.2007. As rightly argued by learned counsel, when the petitioner himself has given evidence to the effect that being a Medical Representative and as part of his employment, he was at Bombay and therefore he could not be present in court on 21.6.2007 and also could not file the application within time and his evidence was not challenged by cross examination, learned Sub Judge was not justified in disbelieving that evidence for the reason that no documentary evidence was produced to establish that petitioner was in Bombay. When the evidence of PW1 remains unchallenged, learned Sub Judge should not have disbelieved the case that he was in Bombay and that is for valid reasons. In such circumstances, he could have allowed the application on terms and restored EA 540 of 2007. Ext.P2 order is therefore quashed. E.A.374 of 2005 will stand restored and WP(C) 16241/2008 3 E.A.539 and 530 of 2007 will stand allowed on petitioner paying or depositing a cost of Rs.1,500/- to respondent decree holder before the executing court, within three weeks from today failing which orders will stand confirmed. M.SASIDHARAN NAMBIAR, JUDGE lgk/-