IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 8TH JUNE 2009 / 18TH JYAISHTA 1931 CRP.No. 1166 of 2001(B) ----------------------- AGAINST THE ORDER IN IA 218/2000 IN OS.775/1991 of ADDL.SUB COURT,KOTTAYAM .................... PETITIONER(S)/PETITIONER/PLAINTIFF: ------------------------------------------------------- ALEYAMMA ABRAHAM, MURIACKAL HOUSE, LAKKATTOOR KARA, KOOROPPADA VILLAGE. BY ADV. SRI.JOHN VARGHESE SRI.T.SAJI RESPONDENT(S)/COUNTER PETITIONER/DEFENDANTS: ------------------------------------------------------------------------------- 1. GOVERNMENT OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. MRS. ANASTHESIA @ ANNIE, NADUMPALAKUNNEL HOUSE, LALAM VILLAGE, PALA. 3. DR. N.GOPALAKRISHNAN, GOVT. HOSPITAL, PALA. 4. DR. N. RAJAMMA, SUPERINTENDENT, DISTRICT HOSPITAL, KOTTAYAM. ADV. SRI.T.P.VARGHESE FOR R2 SRI.THOMAS T.VARGHESE FOR R2 BY GOVERNMENT PLEADER SRI. LAKSHMI NARAYAN FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08/06/2009, ALONG WITH CMA NO. 99 OF 2001, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - C.R.P. No.1166 of 2001 & C.M.A. No. 99 of 2001. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of June, 2009. ORDER Bhavadasan, J, Aggrieved by the order of dismissal of I.A. 217 of 2000 and I.A. 218 of 2000 by the Additional Sub Court, Kottayam, petitioner before the court below has come up in appeal and revision. C.M.A. 99 of 2001 is directed against the order dismissing the application for restoration of the suit and the Civil Revision Petition is directed against the order dismissing the delay condonation petition. 2. The suit was one for damages. The suit was posted for trial to 9.12.1998 and since the petitioner could not be present on that day, the suit was dismissed for default. According to the petitioner, she was not aware of the date of listing of the suit and she had no communication from her counsel. She had been promised that she would be given intimation as to when the suit comes up for trial. Since she did CRP.1166/01 & CMA.99/01. 2 not receive any information for a long time, she inquired with her Advocate in December, 1999. Then she came to know that the suit had been dismissed for default. It is pointed out by the petitioner that the clerk of the counsel had made a mistake in noting the date of trial of the suit. So also it is pointed out by her that the counsel, who was looking after her case, was attached to the senior counsel and during the relevant time her counsel had set up independent practice. Due to all the above reasons, she could not appear in the court on the day on which the suit was listed for trial. According to her, there were no wilful laches or negligence on her part and her absence on the day on which the suit was listed for trial occurred under the circumstances mentioned above. Therefore, she filed I.A. 217 of 2000 for restoration of the suit and I.A. 218 of 2000 to condone delay of 370 days in filing the petition to restore the suit. 3. The respondents resisted the petitions. They pointed out that there were no bonafides in the claim made by the CRP.1166/01 & CMA.99/01. 3 petitioner and that she had deliberately absented herself on the date of trial of the suit. 4. On an appreciation of the materials before it, the court below found that there was no bonafides in the claim made by the petitioner and accordingly dismissed both the petitions. 5. The question that arises for consideration is whether any interference is called for with the order of the court below. 6. The petitioner examined herself as P.W.1 in support of her allegations in the petitions. She pointed out that she was promised that she would be informed when the suit will be posted for trial by her counsel. Unfortunately since her counsel had left the office of the senior counsel, she was not intimated about the listing of the case. Moreover, it is pointed out by her that the clerk of her counsel made a mistake in noting the posting date also. It also needs to be noticed that the clerk of the Advocate appearing for her had also filed an affidavit before the court below in support of the allegations made by the petitioner. CRP.1166/01 & CMA.99/01. 4 7. It is true that there is considerable delay in filing the petitions. There is nothing in the order of the court below to indicate that the petitioner had on previous occasions adopted dilatory or delaying tactics. It would appear from the record that the case came up in the list for the first time on 9.12.1998. It is difficult to believe that the petitioner would have deliberately absented herself taking the risk of having her suit dismissed for default. 8. It must be remembered that there is no right of appeal and she is also precluded from filing another suit for the same cause of action. There is no justifiable reason to discard the claim made by the petitioner and she ought to have been given an opportunity to have her suit decided on merits. At any rate, any injury or loss caused to the respondents could have been easily compensated by awarding cost. No prejudice is caused to them by having the suit decided on merits. CRP.1166/01 & CMA.99/01. 5 In the result, the appeal and the revision are allowed, the impugned orders are set aside and the suit stands restored to file on condition that the appellant before this court pays a sum of Rs.1500/- to the respondents through counsel within one month from today. If the appellant fails to pay the amount, the appeal and the revision shall stand dismissed. In case the suit is restored to file on payment of cost, the court will make every endeavour to dispose of the suit as expeditiously as possible. P.R. Raman, Judge P. Bhavadasan, Judge sb.