IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 10TH JANUARY 2008 / 20TH POUSHA 1929 FAO.No. 334 of 2007() --------------------- IA.3200/04 IN OS.124/2002 of PRINCIPAL SUB COURT,ERNAKULAM .................... APPELLANT/PETITIONER/PLAINTIFF: ------------------------------ VAS PHARMACEUTICALS (INDIA) LTD., THYKOODAM, VYTTILA, COCHIN-19, REPRESENTED BY THE MANAGING DIRECTOR, VASUDEVAN K. PANDALATH. BY ADV. SRI.JESWIN P.VARGHESE RESPONDENTS: RESPONDENT/DEFENDANT: ---------------------------------- CENTRAL BANK OF INDIA, M.G. ROAD, COCHIN-35, REPRESENTED BY ITS BRANCH MANAGER. BY ADV. SRI.E.R.VENKATESWARAN THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 10/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & V.K.MOHANAN, JJ. ------------------------------- F.A.O.NO.334 OF 2007 -------------------------------- Dated this the 10th day of January, 2008 JUDGMENT Raman, J. This is an appeal against the order passed by the court below dismissing the application filed under Order 9 Rule 9 of the C.P.C. Appellant is the plaintiff. Suit is one for damages. Earlier the matter had come up before this Court in C.R.P.No.629/02 against an order allowing the plaintiff to sue as an indigent person. That C.R.P. was however dismissed; but directed to dispose of the suit within four months. After the disposal of the C.R.P., the case came up for consideration before the trial court on 3/11/2003 which was adjourned to 21/1/2004. Thereafter, the matter was posted to 15/6/2004. In the meantime, the counsel appearing for the petitioner died and the case bundles were returned to the parties. On 15/6/2004 a representation was made before the court below informing that Vakkalath has been relinquished. Though the plaintiff had entrusted the case with another counsel, admittedly no Vakkalath was filed by the new counsel on 15/6/2004. In the circumstances, the suit happened to be dismissed on -2- F.A.O.NO.334/07 15/6/2004. It was thereafter that the appellant/plaintiff filed an application under Order 9 Rule 9 seeking restoration of the suit after setting aside the order dismissing the case for default. The court below held that the reasons put forth by the appellant that he was laid up with viral fever on 15/6/2004, the day on which the case stood posted, were not supported by any medical certificate. The court below further held that the plaintiff ought to have taken steps to make sure the presence of the Advocate on that day. The court below also took into consideration the fact that a time limit was fixed by this Court in the C.R.P for disposal of the suit. It is in these circumstances that the application happened to be dismissed. 2. The learned counsel Sri E.R.Venkiteswaran appearing on behalf of the respondent would contend that on 15/6/2004 there was no sufficient reason shown by the appellant/plaintiff for his non-appearance. According to him, as between the parties there were other proceedings relating to the same issue and the appellant was appearing before the Tribunal in those proceedings and if, as a matter of fact, he was laid up on 15/6/2004 as alleged, the appellant ought to have substantiated his contention by producing cogent evidence therein. 3. We have heard the parties. 4. It is not in dispute that the earlier counsel engaged by the plaintiff -3- F.A.O.NO.334/07 died and on the date on which the case stood posted, it was represented that Vakkalath has been relinquished. That the case bundles were taken from the office of the then counsel; but no fresh Vakkalath was filed by the new counsel engaged. That may perhaps be a good reason why nobody appeared on behalf of the appellant but at the same time nothing prevented the appellant from appearing on 15/6/2004 unless he had a case that he never knew that the case stood posted on 15/6/2004. On the other hand, his explanation is that he was suffering from viral fever and hence he could not appear on 15/6/2004, then necessarily he ought to have produced some evidence in regard thereto to convince the court about the explanation offered. Therefore, it cannot be said that the court below was totally wrong in dismissing the application filed under Order 9 Rule 9. At the same time, in such matters the court should consider as to whether there was any laches or negligence on the part of the appellant in not appearing in the case on the day on which it stood posted. Admittedly, the plaintiff wanted to contest the suit as an indigent person, an application thereto was allowed and the C.R.P. filed therefrom was contested and ultimately it was dismissed. Subsequently, the case was posted before the court below. It was at that time that the learned counsel engaged by the plaintiff expired and he had entrusted the matter with the new counsel. These circumstances would show that there is no negligence on the part -4- F.A.O.NO.334/07 of the petitioner in not prosecuting the matter. Therefore, we feel that this is a fit case where the court below ought to have condoned the absence and allowed the application on terms. 5. In these circumstances, we set aside the order passed by the court below on condition that an amount of Rs.5,000/- (Rupees five thousand) by way of cost shall be paid to the respondent on or before 24/1/2008 through counsel, failing which the appeal will stand dismissed. A memo to that effect shall be filed before this Court. Since there is already an order passed by this Court in the C.R.P. directing expeditious disposal of the suit and in view of the changed circumstances, the court below shall dispose of the suit in terms of the order passed by this Court in the said C.R.P. However, the time for disposal of the suit will stand extended by three months from today. Parties shall appear before the court below on 31/1/2008. Appeal is allowed. P.R.RAMAN, Judge. V.K.MOHANAN, Judge. kcv.