IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 5TH OCTOBER 2009 / 13TH ASWINA 1931 FAO.No. 239 of 2009() ------------------------------ I.A. NO.3761/2008 IN LAR.1/1987 of ADDL.SUB COURT,KOLLAM .................... APPELLANT/PETITIONER/CLAIMANT ---------------------------------------------------- KUNJUKOCHU SUMATHI, KOTTADUVILAYIL, ANAYADI MURI, SOORANADU NORTH, KUNNATHOOR TALUK. BY ADV. MR.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) MR.A.R.DILEEP SMT.SURYA SASI RESPONDENT/COUNTER PETITIONER/COUNTER PETITIONER ----------------------------------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, KOLLAM. BY GOVERNMENT PLEADER THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 05/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N.KRISHNAN, J. ........................................... F.A.O.NO.239 OF 2009 ............................................. Dated this the 5th day of October, 2009 J U D G M E N T This is an appeal preferred against the orders passed by the Additional Subordinate Judge, Kollam in I.A.Nos.3761 and 3762 of 2008. Those applications were filed under Order IX Rule 9 and Section 151 of the CPC to restore the LAR which was dismissed on 30.9.1991. There is a passing reference in the Division Bench that when application of mind is not done, an application under Order IX Rule 9 or Section 151 can be filed. Therefore, I entertain this appeal because it is an order passed under Order IX Rule 9. But, the more important question to be considered is whether there is any genuineness in the application to condone the delay. 2. The learned counsel, in all fairness, had made available before me for perusal the award of the Principal subordinate Judge, Kollam in LAR.No.1/1987 which was disposed of as early as on 30.9.1991. It relates to acquisition of 4.80 Ares of dry land in Survey No.465/1-7 of : 2 : F.A.O.NO.239 OF 2009 Sooranadu North village. The claimant did not appear before the court and did not tender any evidence and therefore, in the absence of any evidence, the land acquisition court refused to enhance the compensation. Now the delay even ccording to the claimant, in filing the application for restoration is 6237 days. The learned counsel is perfectly right when he says that it is not the length of the delay but the cause of the delay. Then what shall be the cause of the delay is the next question. It is contended that the claimant has entrusted a lawyer and she was away at Jammu and Kashmir in connection with the employment of her husband and the advocate clerk had undertaken to inform her about the developments but it did not materialize. When a person files a reference having the status of a plaintiff in a case at least there is moral obligation on the client to contact the lawyer to find out what was happened to his or her case. I am not prepared to believe that a person had not come to a native place for more than 17 years. To crown all these things, the claimant did not venture to mount the box to give any : 3 : F.A.O.NO.239 OF 2009 evidence in support of the contentions as well. What shall be the principle in such case to be adopted is clearly laid down in a case where the court was considering regarding setting aside the ex-parte decree. In the decision reported in Sreedhara Kurup v. Michel (1968 KLT 599) this Court had held that it is largely a matter of wise discretion to be exercised by the court bear in mind the wholesome principle with the right of a party to be heard should be negatived only if there is gross negligence or gross carelessness. So, the principle of natural justice enables the party to get an opportunity if materials substantiate that there was no gross negligence or gross carelessness. Here is a classic example for gross negligence or gross carelessness for the reason that after entrusting a case one did not have even a temptation to enquire about the fate of her case for 17 long years. Even the statute has been amended still the claimant does not chose and the whole blame is put on the lawyer or the clerk in order to condone the delay. I feel, if these type of applications are entertained, it : 4 : F.A.O.NO.239 OF 2009 will only open the gate for the inflow of these type of cases. Therefore I am totally convinced that there is no ground to condone the delay and therefore the court below was justified in dismissing the applications and as the FAO does not merit consideration, it is dismissed but without costs. M.N.KRISHNAN, JUDGE cl