IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 27TH JANUARY 2011 / 7TH MAGHA 1932 WP(C).No. 32268 of 2008(N) CMA.68/2004 of DISTRICT COURT, PALAKKAD OS.299/1990 of PRINCIPAL SUB COURT, PALAKKAD (IA.3462/1996) PETITIONER: --------------- INSTRUMENTATION LTD KANJIKODE WEST, PALAKKAD 678 623 REP. BY ITS GENERAL MANAGER. BY ADV. SRI.E.K.MADHAVAN SMT.P.VIJAYAMMA SRI.P.J.ANILKUMAR SMT.UMA GOPINATH SRI.V.KRISHNA MENON RESPONDENT: --------------- K.ARAVINDAKSHAN KRISHNA MANSION, KARUMANNAMPALLAM., THEKKE DESOM, NALLEPULLY , CHITTUR TALUK, PALAKKAD. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C). NO. 32268 OF 2008 N ------------------------------------------------------ Dated this the 27th day of January, 2011 JUDGMENT The petitioner, Instrumentation Limited, challenges the concurrent findings and orders of the court below dismissing the application for restoration of the suit. 2. The respondent was a Store Keeper in the petitioner Company. The allegation is that he misappropriated a sum of `19,819.05 by making false entries in the books of account and vouchers. A domestic enquiry was conducted and it was found that the respondent misappropriated a sum of ` 17,482.75. The respondent was dismissed from service with effect from 16.2.1984. The suit, O.S.No.229 of 1990 on the file of the Court of the Subordinate Judge of Palakkad, was filed by the petitioner for realization of the amount allegedly misappropriated by the respondent. 3. When the suit came up for trial, the petitioner filed W.P.(C) NO.32268 OF 2008 :: 2 :: application for adjournment of the case. The trial court dismissed that application and dismissed the suit for default. Thereafter, as per I.A.No.1726 of 1993, the petitioner/plaintiff applied for restoration of the suit. That application was allowed and the suit was restored to file. Again when the suit came up in the special list for trial on 18.8.1994, the plaintiff applied for removing the case from the special list and for adjournment. The ground for adjournment was that the original records were produced before the Industrial Tribunal and the factum of falsification of accounts could be proved only by production of the original records. But, the petitioner/plaintiff did not take any steps to call for the records from the Industrial Tribunal. When the case came up for trial in the special list on 8.2.1996, the suit was removed from the list. Again on 1.4.1996, on the application of the plaintiff, the suit was removed from the list. On 4.7.1996, when the suit was listed for trial, there was no sitting and the case was adjourned to 11.7.1996 On that date, the plaintiff again filed an application for adjournment. The court below dismissed that application and, as the plaintiff and defendant were absent, the suit was dismissed for default. Thereafter, the plaintiff filed an application for restoration of the suit. The application for restoration W.P.(C) NO.32268 OF 2008 :: 3 :: of the suit came up for hearing on 24.5.1997. On that date, the plaintiff was absent and, therefore, the application was dismissed. 4. The petitioner/plaintiff challenged the order dated 24.5.1997 in C.M.A.No.47 of 1997 before the Additional District Court, Palakkad. As per the judgment dated 21.6.2001, the order dated 24.5.1997 was set aside and the trial court was directed to consider the application for restoration of the suit on the merits. 5. Thereafter, the trial court considered the application on the merits and it was held that there was no ground for the absence of the plaintiff before Court on the date on which the suit was posted for trial. It was held that no sufficient grounds are made out for restoration of the suit. It was also held that the plaintiff could have taken steps for calling for the original records from the Industrial Tribunal. 6. The petitioner/plaintiff filed C.M.A.No.68 of 2004 before the District Court, Palakkad, challenging the order of the trial court. The W.P.(C) NO.32268 OF 2008 :: 4 :: learned District Judge concurred with the view taken by the trial court and dismissed the appeal. 7. The respondent was a Store Keeper. He was dismissed from the service of the petitioner with effect from 16.2.1984. The suit was filed against him in 1990. Consistently, the petitioner/plaintiff was absent and was not ready to go on with the trial of the case. Even after restoration of the suit once, the plaintiff did not get ready with the documents. The matter was adjourned on several times and ultimately, the court had no other option but to dismiss the suit for default. Even the application for restoration of the suit was dismissed thereafter. Again on appeal, the matter was remanded for fresh consideration. The court below arrived at the conclusion that there was no sufficient ground for restoration of the suit and that the plaintiff was a defaulting party all through out. 8. Even if a lenient view is taken and the discretion is exercised in favour of the petitioner, the result would be directing the opposite party, a Store Keeper who was dismissed in 1984, to appear before this Court and thereafter before the trial court to face W.P.(C) NO.32268 OF 2008 :: 5 :: the trial of a suit for realization of money filed in 1990. That will be adding insult to injury caused to him. There is no justification for issuing notice to the respondent. It will be a great injustice if the respondent is directed to face trial of the suit. It is stated that the petitioner is a Public Limited Company and there cannot be any concession on the part of the Company. The Company need not concede for anything, but the Company is expected to be vigilant when a case is prosecuted against a dismissed employee. The court below rightly held that there is no ground for restoration of the suit. The Writ Petition is, accordingly, dismissed. (K.T.SANKARAN) Judge ahz/