IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 25TH JUNE 2010 / 4TH ASHADHA 1932 WP(C).NO. 7045 OF 2004(L) ------------------------- {CMA.22/2001 OF THE PRINCIPAL SUB COURT, ATTINGAL OS.428/1996 OF THE MUNSIFF COURT, ATTINGAL} .................... PETITIONER(S): --------------- SAINUDEEN, S/O. ALIYARU KUNJU, AGED 43 YEARS, NAVAS MANZIL, PUTHOOR, MUDAKKAL MURI, NELLANADU VILLAGE. BY ADV. SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN SRI.A.S.SABU SRI.A.G.GIRISH KUMAR RESPONDENT(S): --------------- 1. K. RADHAKRISHNA PILLAI, SUB INSPECTOR OF POLICE, KILIKOLLOOR POLICE STATION, KOLLAM. 2. ABDUL KHARIM, S/O. MOIDEEN PICHA AGED 48 YEARS, JIHU MANZIL, PUTHOOR, MUDAKKAL MURI, NELLANADU VILLAGE. ADV. SRI.J.JAYAKUMAR FOR R.2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).NO. 7045 OF 2004 :: :: APPENDIX PETITIONERS' EXHIBITS: EXT.P1: TRUE COPY OF THE ORDER DATED 13.3.2001 IN I.A.18/99 IN O.S.428/96 OF THE LEARNED MUNSIFF COURT, ATTINGAL. EXT.P2: TRUE COPY OF THE ORDER DATED 31.7.2003 IN CMA NO.22/2001. RESPONDENTS' EXHIBITS: NIL //true copy// P.S. To Judge SK/- S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- W.P.(C) No.7045 of 2004 -------------------------------------------------------- Dated this the 25th day of June, 2010. JUDGMENT Concurrent findings entered by two courts below that the petitioner/plaintiff in a suit for damages has not made out sufficient cause for restoring his suit dismissed for default, is challenged in this writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution. 2. The petitioner had instituted a suit for damages against two defendants. He is a police constable. On the day when the case stood posted, he remained absent and the suit was dismissed. He moved an application on the same day stating that he was on duty and hence was incapacitated from appearing before the court. The case of the petitioner was challenged by the respondents. The duty register was summoned from W.P.(C) No.7045 of 2004 :: 2 :: the police station and exhibited in evidence as Ext.X1. The petitioner and the Sub Inspector of the station were examined as Pws.1 and 2. The learned Munsiff, on the materials tendered, was not satisfied with the case pleaded by the petitioner for his absence. It was noticed that Ext.X1 duty register did not show the period of time he was on duty on the particular day. The application for restoration was, therefore, dismissed by the trial court. The appellate court, after having re-appreciation of the evidence, concurred with the finding as above entered by the learned Munsiff, with the result the appeal was also dismissed. 3. I heard the counsel. After perusing Ext.P1 order passed by the learned Munsiff and Ext.P2 judgment rendered by the learned Sub Judge, Attingal in appeal, with reference to the submissions made by the counsel, I find that it W.P.(C) No.7045 of 2004 :: 3 :: cannot be held that the concurrent findings entered by the two court below, in any way, suffer from any infirmity. It is also noticed that the suit was one for damages. Whatever be the merits of the case canvassed by the petitioner, at this point of time, a restoration of the suit would cause serious prejudice to the defendants, as the long lapse of time, after the institution of the suit, might have obliterated whatever evidence available which could have been gathered to sustain their defence. That also has to be taken into account in considering the question whether discretion has to be exercised in favour of the plaintiff for restoration of his suit to have an adjudication of the disputes on merits. Even assuming that he was on duty on the day when the case was listed before the court, nothing prevented him from instructing his counsel to represent before W.P.(C) No.7045 of 2004 :: 4 :: the court on his behalf and seek an adjournment, if necessary to lead evidence in the case. There was no representation from his counsel is also borne out from the statements made in Ext.P1 order and Ext.P2 judgment. Though the learned counsel for the petitioner submitted that there was representation the court had recorded to the contrary. I am unable to accept the submission. Whatever has been stated by the court in the judicial proceedings has to be treated as conclusive and final, and if at all there is any mistake in any such statement that has to be corrected moving an appropriate petition before the concerned court. The petitioner had moved the application on the same day for restoring his suit, but that, in the given facts of the case cannot be given unmerited consideration. Taking an over all view of the facts present in the case, and the prejudice likely to W.P.(C) No.7045 of 2004 :: 5 :: be caused to the defendants in restoring the suit dismissed for default decade ago, I find no interference with the orders of the court below is called for. Writ petition is accordingly dismissed. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy//