IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 22ND MAY 2008 / 1ST JYAISHTA 1930 FAO.No. 121 of 2008() --------------------- AGAINST THE ORDER DATED 22/11/2007 IN IA 3356/06 & 3357/06 IN OS.347/1997 of PRINCIPAL SUB COURT, PALAKKAD .................... APPELLANT/PETITIONER/PLAINTIFF: ------------------------------------------------------- R.SUNDARAM, S/O.RAJALINGAM PILLA, AGED 59 YEARS, RAJAPPAN STREET, THATHAMANGALAM, CHITTUR TALUK, PALAKKAD NOW RESIDING AT PLOT NO.9, SUNDAR LOK, IST MAIN STREET, KAMAKSHI NAGAR, THIRUNELVELI, TAMIL NADU. BY ADV. SRI.N.UNNIKRISHNAN RESPONDENTS: RESPONDENTS/DEFENDANTS: ------------------------------------------------------------------------ 1. K.K.VARGHESE, RESIDING AT KOMPUPARAKKAL VEEDU, KUZHOOR, MUZHUVANNOR, KUNNATHUNADU TALUK, ERNAKULAM. 2. P.V.RAGHAVA VARIYAR, RESIDING AT PETTA, POTTASSERY PALAM, MANNARKADU TALUK, PALAKKAD. BY THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 22/05/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- F.A.O. No. 121 OF 2008 --------------------- Dated this the 22nd day of May, 2008 JUDGMENT This appeal is preferred against the order of the Subordinate Judge, Palakkad, in I.A. No.3356/06 & 3357/06 in O.S. No.347/97. I.A. No.3356/06 is filed to condone the delay of 840 days in filing the application to restore the suit, which was dismissed on 9.6.04 and I.A. No.3357/06 is filed for restoration of the suit. The petitioner was working as an employee in the KSRTC. His wife was working as a Professor in Government College at Chittur from where she was transferred to Thiruvananthapuram. He has got three daughters. On account of the cruel attitude of the defendants, they were forced to leave the place. Thereafter a suit has been instituted for damages. The suit was listed in 2004. On that day there was some representation on behalf of the counsel. The plaintiff was also called and as he was absent, the suit was dismissed for default. It happened on 9.6.04. The application for restoration is filed only in October 2006. The reason attributed is that the address which was available with the lawyer was his address at Thathamangalam at FAO NO.121/08 2 Chittur. Though a letter was sent to that address, as the petitioner had left the place, it could not reach him and it was on account of this mis-communication he was not able to be present before the court. Along with the appeal memorandum an election identity card is also produced, which itself would indicate that as early as on 31.10.00 he had obtained the election card from the Tirunelveli district in Tamil Nadu. So, even before the dismissal of the case in 2004, admittedly he had shifted his residence to Tirunelveli. 2. When a plaintiff files a case, it is rather incumbent upon his part to inform his counsel his new address or rather it is imperative on his part to contact the counsel to know about the fate of the case. Filing an application with a prayer to condone the delay of 840 days and attempting to explain the delay on the ground that the letter had not reached him cannot be accepted. I am conscious of the fact that as far as possible the courts shall attempt to hear the matter on merits. But it is equally well cautioned that when one is grossly negligent or when there is grave misconduct, the liberal principle shall not be extended to those persons. When a perusal of records available itself would indicate that he has shifted the residence four years prior to the listing and dismissal of the case and FAO NO.121/08 3 thereafter remains quite for almost three years and then files an application for restoring the suit, there must be atleast cogent and convincing evidence to that effect to condone the delay. The Apex court has held that it is not the long number of delays that has to be looked into but it is the reason that has to be looked into. The reason submitted by the appellant cannot be accepted as a valid ground for condoning the delay. Therefore I do not find any mistake committed by the court below in finding that there are no valid reasons to condone the delay and consequently dismissing the application for restoration. The FAO lacks merit and it is accordingly dismissed. M.N.KRISHNAN, JUDGE vps FAO NO.121/08 4 FAO NO.121/08 5