IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 10TH AUGUST 2009 / 19TH SRAVANA 1931 FAO.No. 30 of 2008() -------------------- AGAINST THE ORDER DATED 27/07/2007 IN IA.742/2007 IN OS.60/2004 OF SUB COURT, PALA PETITIONER ABRAHAM THOMAS ,AGED 80 YEARS S/O.ABRAHAM, PALAKUNNAM ESTATE , VALAKAYAM CHIRAKKADAVU P.O., 686 520, (VIA) KANJIRAPPALLY CHERUVALLY VILLAGE, KANJIRAPPALLY TALUK KOTTAYAM DISTRICT. (DIED) ADDITIONAL APPELLANTS: 2. ABRAHAMM GEORGE, AGED 45 YEARS, SON OF LATE ABRAHAM GEORGE, PALAKUNNAM ESTATE, VALAKAYAM, CHIRAKKADAVU P.., 686 520, (VIA.) KANJIRAPPALLY. 3. ALEX GEORGE, AGED 43 YEARS, SON OF LATE ABRAHAM GEORGE, PALAKUNNAM ESTATE, VALAKAYAM, CHIRAKKADAVU P.O. 686 520, (VIA) KANJIRAPPALLY. 4. THOMAS GEORGE, AGED 40 YEARS, SO OF LATE ABRAHAM GEORGE, PALAKUNNAM ESTATE, VALAKAYAM, CHIRAKKADAVU P.O., 686 520, (VIA) KANJIRAPPALLY, REPRESENTED HIS BROTHER AND POWER OF ATTORNEY HOLDER, ALEX GEORGE, AGED 43 YEARS, SON OF LATE ABRAHAM GEORGE, PALAKUNNAM ESTATE, VALAKAYAM, CHIRAKKADAVU P.O. 686 520, (VIA) KANJIRAPPALLY. (LEGAL REPRESENTATIVES OF THE DECEASED FIRST APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 4 AS PER ORDER DATED 6.2.2009 ON I.A. NO. 410/2009). BY ADV. SRI.H.B.SHENOY SRI.B.ASHOK SHENOY SRI.THOMAS P.MAKIL SMT.LAKSHMI B.SHENOY SRI.ABU MATHEW SRI.SOBHAN GEORGE RESPONDENT(S): --------------- 1. VALSAMMA JACOB, W/O. JACOB JOSEPH KUZHITHODU HOUSE, CHELADU ESTATE,EIMURY KARA, KOOVAPPADY VILLAGE,KUNNATHUNADU TALUK, ERNAKULAM DISTRICT, NOW RESIDING AT KUZHITHODU HOUSE THENADUKKU BHAGOM, VADAKANCHERRY PO,678683, ALATHUR TALUK, PALAKKAD DISTRICT. 2. JOBY JACOB,S/O.JACOB JOSEPH KUZHITHODU HOUSE, CHELADU ESTATE,EIMURY KARA, KOOVAPPADY VILLAGE,KUNNATHUNADU TALUK, ERNAKULAM DISTRICT, NOW RESIDING AT KUZHITHODU HOUSE THENADUKKU BHAGOM, VADAKANCHERRY PO,678683, ALATHUR TALUK, PALAKKAD DISTRICT. 3. JEENA,D/O.JACOB JOSEPH KUZHITHODU HOUSE, CHELADU ESTATE,EIMURY KARA, KOOVAPPADY VILLAGE,KUNNATHUNADU TALUK, ERNAKULAM DISTRICT, NOW RESIDING AT KUZHITHODU HOUSE THENADUKKU BHAGOM, VADAKANCHERRY PO,678683, ALATHUR TALUK, PALAKKAD DISTRICT. 4. VINAYA,D/O.JACOB JOSEPH KUZHITHODU HOUSE, CHELADU ESTATE,EIMURY KARA, KOOVAPPADY VILLAGE,KUNNATHUNADU TALUK, ERNAKULAM DISTRICT, NOW RESIDING AT KUZHITHODU HOUSE THENADUKKU BHAGOM, VADAKANCHERRY PO,678683, ALATHUR TALUK, PALAKKAD DISTRICT. ADV. SRI.P.C.HARIDAS FOR R1 TO 3 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 10/08/2009, ALONG WITH FAO NO. 31 OF 2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. = = = = = = = = = = = = = = = = = = = F.A.O. NOS. 30 & 31 OF 2008 = = = = = = = = = = = = = DATED THIS, THE 10TH DAY OF AUGUST, 2009. J U D G M E N T Bhavadasan, J. Two applications for restoration of the suits were dismissed by the court below. F.A. O. 30/2008 is directed against the order dated 27.7.2007 in I.A. NO. 742 of 2007 in O.S. 60/2004 on the file of the Sub Court, Pala. F.A.O. 31/2008 is directed against the order dated 27.7.2007 in I.A. 743/2007 in O.S. 55/2004 before the same Court. 2. In both the appeals, parties are same. The suits were instituted for money. It is seen that the suits were posted for trial in the special list on 3.11.2006 and on that day, the plaintiff was unable to attend the court due to severe cardiac problem. 3. It appears that a Commissioner was deputed to take the evidence of the plaintiff in both the suits. The case was posted for taking evidence of the plaintiff by the Advocate Commissioner to 8.11.2006. But due to illness he was unable to depose to the Commissioner on that day and the cases were posted to 27.11.2006. F.A.O. NOS. 30 & 31/2008 2 On that day petitioner was bed ridden and he could not give evidence before Commissioner. The Advocate Commissioner filed an interim report on 27.11.2006 stating that he could not take deposition of the plaintiff due to the non-co-operation of the plaintiff. Accepting the report of the Advocate Commissioner, both the suits were dismissed for default. Applications filed by the plaintiff for restoration of the suits were also dismissed. Hence these appeals. 4. It is seen that the plaintiff was given several opportunities to adduce evidence in both the case. In fact, considering the ill- health of the plaintiff, an Advocate Commissioner was also deputed to take evidence. The plaintiff would say that he was unable to depose even before the Commissioner because he was sick and bed ridden. The court below refused to accept the plea that the plaintiff was bed ridden and hence had dismissed the suits for default. 5. Learned counsel appearing on behalf of the appellant pointed out that there was no willful default on the part of the plaintiff and his non co-operation to give evidence was due to the circumstances mentioned above. It is also stated that an opportunity may be given to the plaintiff to adduce evidence in support of his F.A.O. NOS. 30 & 31/2008 3 case. 6. Learned counsel appearing on behalf of the respondent, on the other hand, pointed out that sufficient opportunities had already been given to the plaintiff and he had failed to utilize the same. According to him, it is very evident from the proceedings sheet that the attempt of the plaintiff is to drag on the proceedings . 7. From the records, it is seen that the plaintiff was suffering from heart ailment and he has produced a medical certificate which shows that he was suffering from severe heart disease, he was advised to take complete bed rest and to avoid mental and physical stress till the surgery is done. 8. One should remember that the plaintiff has paid huge amount as court fee and it is rather difficult to believe that he would have simply absented from the court and from giving evidence. It must also be noticed that from the order of dismissal on default, there is no appeal. Further, due to the ill-health of the plaintiff, an Advocate Commissioner was also deputed to take evidence of the plaintiff on the application filed by himself, for which batta was also paid. In spite of that he could not depose before the Commissioner also due to his illness. It is inconceivable that the plaintiff would F.A.O. NOS. 30 & 31/2008 4 have deliberately abstained from the court on the date on which the suit was posted and also when the Commissioner had come to take evidence. Further, the appellant later died and the Legal Representatives have come on the party array. Considering the nature of the suit and the fact that huge court fee has been paid and considering the cause for default on the appellant's part, we think it is only appropriate that an opportunity is given to the additional plaintiffs to have the suit decided on merits. 9. In the result, the appeals are allowed, the orders impugned are set aside and the suits are restored to file; but with a direction to dispose of the suit as expeditiously as possible, at any rate, within a period of six months from the date of this order. The parties shall appear before the court below on 14.9.2009. P.R. RAMAN, JUDGE P. BHAVADASAN, JUDGE. KNC/-