IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 4TH APRIL 2008 / 15TH CHAITHRA 1930 FAO.No. 41 OF 2008() AGAINST THE ORDER DATED 26/10/2007 IN IA.1236/2007 IN OS.59/2005 OF ADDL.SUB COURT, THALASSERY APPELLANT/PETITIONER/PLAINTIFF M/S. VIVIN INDUSTRIES, BY ITS MANAGING PARTNER - T.S.R. KANNAIYAN AVARAMPALAYAM ROAD, K.R.PURAM, COIMBATORE - BY POWER OF ATTORNEY HOLDER-V.NARAYANAN. BY ADV. SRI.K.V.SOHAN SMT.SREEJA SOHAN.K. SRI.VINEETH KURIAKOSE RESPONDENTS: RESPONDENTS/DEFENDANTS 1. EXECUTIVE ENGINEER KERALA WATER AUTHORITY PUBLIC HEALTH DIVISION, KANNUR. 2. THE SUPERINTENDING ENGINEER KERALA WATER AUTHORITY, KANNUR-12. 3. KERALA STATE REPRESENTED BY DISTRICT COLLECTOR, KANNUR. BY ADV. SMT.AMBIKA DEVI, SC, KWA THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 27.3.2008, THE COURT ON 04/04/2008, DELIVERED THE FOLLOWING: P.R. RAMAN & V. K. MOHANAN, JJ. = = = = = = = = = = = = = = = = = = = = F.A.O. 41/2008 = = = = = = = = = = = = DATED THIS, THE 4TH DAY OF APRIL, 2008. J U D G M E N T Raman, J. Plaintiff is the appellant. The suit was dismissed for default. Thereupon, he filed an application under Order 9 Rule 5 of the Code of Civil Procedure for restoration. The court below dismissed the application against which the present appeal is preferred. 2. The suit is one instituted by the plaintiff M/s. Vivin Industries for a declaration that the cancellation of the contract between the plaintiff and the second defendant is illegal and not binding on the plaintiff and the claim for damages is illegal. The suit was listed for trial on 15.2.2007 on which day, the plaintiff was not present. According to the appellant, his Power of attorney holder sought for an adjournment of the case on the appointed day since the Power of attorney holder was not keeping well due to hypertension. But the court below did not find any good reason to restore the suit to file and hence dismissed the same. According to the appellant, the application for restoration was accompanied by medical certificate and in the absence of any doubt regarding the genuineness of the FAO 41/2008 :2: certificate, the restoration application would have been allowed. According to him, the only person who is competent to speak in support of the case of the plaintiff was the Power of attorney holder as a witness whose presence could not be obtained he being indisposed of, which factor ought to have been considered by the court below. The respondent, on the other hand, would support the order appealed against. 3. Heard both sides. The suit was one instituted by the plaintiff and not filed through the Power of attorney holder. The plaint averment is therefore, to be supported by the plaintiff by cogent evidence. Admittedly, the plaintiff was not present on the appointed day. Adjournment itself was moved, according to the appellant, by the Power of Attorney holder, that too, not for the absence of the plaintiff, but for the absence of the Power of attorney holder himself. We have already held in Gopalakrishnan v. Suresh (2008(1) KHC 632) that a Power of Attorney holder is not competent to depose as to the plaint averments when the suit itself is laid not by the power of attorney holder. The deposition of the power of attorney holder at best could be an evidence in the case; but when the plaintiff himself has not mounted the box, there arises suspicion about the genuineness of the case put forth in the plaint. FAO 41/2008 :3: 4. When the suit itself is not laid through the Power of attorney holder, the absence of the plaintiff is fatal. Nobody moved for an adjournment on behalf of the plaintiff. If the plaintiff had appeared and the witness was not present, probably, the plaintiff would have sought for an adjournment and then the matter would have been different. The absence of the plaintiff is to be explained by the plaintiff himself and he cannot authorise his Power of attorney holder to speak for himself explaining the circumstances under which he committed default in appearing before the court. When the plaintiff did not appear he ought to have filed an application under order 9 Rule 9 and give cogent evidence for his absence in which event, the court below would have considered such circumstances if any, preventing the plaintiff from appearing on the appointed day. But in this case, the absence of the plaintiff is not at all explained by anybody. It is only the absence of the Power of attorney holder that is explained. Even the doctor was not examined except to throw a medical certificate. The court below, in such circumstances, did not found that the application for restoration ought to be allowed. We do not find that the order passed by the court below suffers from any illegality. There is no merit in this appeal. It is accordingly dismissed. P.R. RAMAN, (JUDGE) V. K. MOHANAN, (JUDGE) knc/-