IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 17TH JUNE 2010 / 27TH JYAISTHA 1932 FAO.No. 49 of 2008() -------------------- AGAINST THE ORDER DATED 26/10/2007 IN IA.3099/2006 & I.A.3100/2006 IN POP.4/2000 of PRINCIPAL SUB COURT, PALAKKAD .................... APPELLANT/PETITIONER ---------------------------------------- K.P.KUNHALAVI, AGED 54 YEARS, S/O.MOIDUKUTTY, CONTRACTOR, KALLUTTUPALAM, CHERUKODE P.O., OTTAPPALAM, VELLAPUZHA VILLAGE, OTTAPPALAM TALUK, PALAKKAD DIST. BY ADV. SRI.P.K.BALAKRISHNAN NAIR RESPONDENT(S): RESPONDENTS ----------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, IRRIGATION DEPARTMENT, TRIVANDRUM. 2. THE SUPERINTENDING ENGINEER, SIRUVANI PROJECT CIRCLE, PALAKKAD. BY GOVERNMENT PLEADER SRI.K.B.RAMANAND. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 17/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: FAO.No. 49 of 2008 - 2 - ORDER ON I.A.708/2008 IN FAO.49/2008 DISMISSED. 17.6.2010. SD/-THOTTATHIL B.RADHAKRISHNAN, JUDGE. SD/-S.S.SATHEESACHANDRAN, JUDGE. -TRUE COPY- P.S.TO JUDGE. Thottathil B.Radhakrishnan & S.S.Satheesachandran, JJ. = = = = = = = = = = = = = = = = = = = = = = = = F.A.O.No.49 of 2008 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 17th day of June, 2010. Judgment Thottathil B.Radhakrishnan, J. 1.The appellant was an A Class contractor registered with the Public Works Department. In 2000, he filed an application before the court below to institute a suit for recovery of money as an indigent. The suit is one for recovery of money allegedly due for a contract work done by him. In March, 2004, that petition (POP.4/2000) was dismissed for default. With an enormous delay, the appellant filed I.A.3099/2006 and FAO49/08 -: 2 :- I.A.3100/2006 seeking to restore that petition and also seeking condonation of delay in applying for restoration. He tendered evidence on affidavit as P.W.1. He produced Exts.A1, A2 and A3. Ext.A1 evidenced that in March, 2005, he had been for some time under the treatment of Sree Ramakrishna hospital. Ext.A2 showed that in November, 2004 he was treated at the Lakeshore hospital. Ext.A3 related to certain tests carried out on him from the Medical College Hospital, Thrissur. Though the date of the treatment in the Thrissur Medical College is not discernible, even going by the case of the appellant, he was hospitalised in Thrissur Medical College hospital some time before the institution of the original petition before the court below in 2000. It appears that in connection with certain amounts due to the Government under different other contracts, including amounts for risk and cost arrangements, the appellant was proceeded against under the provisions of the Revenue Recovery laws and he was arrested and imprisoned. It is stated FAO49/08 -: 3 :- that from custody, he was taken to the Medical College Hospital, Thrissur where he fell sick. That was not at any time near to the dismissal of the POP for default. With the aforesaid materials, we find that the court below has appreciated the evidence on record properly and that the inferences drawn by the court below cannot be disturbed. The finding that the petitioner-appellant did not show cause for his non-appearance on 11.3.2004 when the POP was listed for evidence, does not, therefore, warrant interference. 2.When an application to sue as an indigent person is dismissed, the matter would necessarily stand listed for payment of court fee and for prosecuting the case accordingly. Without prejudice to such relief that may be available to the appellant, subject to any such earlier posting that has already been granted by the court below, we find no merit also in the appeal. FAO49/08 -: 4 :- In the result, this appeal fails. The same is accordingly dismissed. No costs. Thottathil B.Radhakrishnan, Judge. S.S.Satheesachandran, Judge. Sha/1906