IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 15TH SEPTEMBER 2010 / 24TH BHADRA 1932 WP(C).No. 5630 of 2007(T) --------------------------------- OP.5/2003 of PRINCIPAL SUB COURT, ATTINGAL .................... PETITIONER: --------------- SAHRUDAYA, W/O. LATE VELAYUDHAN ACHARI, KARIKKAKATHIL VEEDU, VELLALLOOR P.O., KILIMANOOR, THIRUVANANTHAPURAM. BY ADVS. SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN SRI.SABU SREEDHARAN RESPONDENTS: ----------------- 1. CHAIRMAN CUM MANAGING DIRECTOR, M/S. UNITED INDIA INSURANCE COMPANY LIMITED, REGISTERED HEAD OFFICE, WHITE ROAD, CHENNAI-600 024. 2. BRANCH MANAGER, CITY BRANCH OFFICE, M/S. UNITED INDIA INSURANCE COMPANY LIMITED, SHARANYA, NO.III.C.40/364(1), HOSPITAL ROAD, ERNAKULAM, KOCHI-682 011. 3. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, TRIVANDRUM. 4. JAYAKUMAR, S/O. LATE VELAYUDHAN ACHARI, KARIKKAKATHIL VEEDU, VELLALLOOR P.O., KILIMANOOR, THIRUVANANTHAPURAM. 5. ANILKUMAR, S/O. LATE VELAYUDHAN ACHARI, KARIKKAKATHIL VEEDU, VELLALLOOR P.O., KILIMANOOR, THIRUVANANTHAPURAM. WP(C).No. 5630 of 2007(T) 6. ANILA, D/O. LATE VELAYUDHAN ACHARI, KARIKKAKATHIL VEEDU, VELLALLOOR P.O., KILIMANOOR, THIRUVANANTHAPURAM. ADVS. SRI.R.T.PRADEEP FOR R4,5& 6 SRI.T.J.LAKSHMANAN IYER FOR R2 SRI.T.GOPALAKRISHNAN FOR R2 SRI.T.J.LAKSHMANAN IYER FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 5630 of 2007(T) APPENDIX PETITIONER'S EXHIBITS : EXHIBIT P1 : TRUE COPY OF THE AFFIDAVIT AND PETITION FILED BY THE PETITIONER DATED 12.07.2004. EXHIBIT P2 : TRUE COPY OF THE AFFIDAVIT AND PETITION FILED BY THE PETITIONER DATED 12.07.2004. EXHIBIT P3 : TRUE COPY OF THE ORDER PASSED BY THE SUB JUDGE, ATTINGAL DATED 31.08.2005. RESPONDENTS EXHIBITS : NIL /TRUE COPY/ P.A.TO JUDGE. HARUN-UL-RASHID, J. ------------------------------------- WP(C) NO.5630 of 2007 ------------------------------------- Dated this the 15th day of September, 2010 JUDGMENT The writ petitioner is the first petitioner in O.P.(Pauper) No. 5 of 2003 on the file of the Sub Court, Attingal. The respondents 1 to 3 are the respondents in O.P.(Pauper) No. 5 of 2003. The O.P. ( Pauper) happened to be dismissed on 22.08.2003 for default. The petitioner filed I.A.No. 971/2004 for restoration of the O.P. which was dismissed for default. I.A.No. 992/2004 was filed for condonation of delay in 295 days in filing the restoration petition. The learned Sub Judge by Ext.P3 order dated 31.08.2005 dismissed the I.A.s. 2. The Writ Petition is filed for seeking to set aside Ext.P3 order and prayed for restoration of the O.P. to file after condoning the delay of 295 days in filing the restoration petition. 3. The O.P. was posted on 22.08.2003. On that day neither the petitioner nor her counsel was present. So the case was dismissed for default . In the affidavit in support of the above mentioned I.A.s. it is stated that the advocate clerk failed to note down the posting date of the case, therefore, his lawyer was unable WP(C) NO. 5630 of 2007 2 to attend the case on 22.08.2003. It is further stated that the petitioner was laid up with jaundice for three weeks and thereafter she was bed ridden due to rheumatic complaints. Therefore, she could not contact her advocate in time for filing the restoration petition. Petitioner, therefore, stated in the affidavit that there is no wilful latches and deliberate inaction on her part in filing the restoration petition in time. 4. The learned Sub Judge found that there is absolutely no explanation on the part of the petitioner for the inordinate delay of 295 days in filing the petition for restoration of the suit. This observation may not be correct. I have perused the affidavit filed in support of the petition for condonation of delay. Paragraph 6 of the affidavit is extracted below: “I was laid up with jaundice for three weeks. Thereafter, I was bed ridden due to rheumatic complaints. So I could not contact my advocate for filing the restoration petition. Thus there is a delay of 295 days for filing the restoration petition. There is no wilful latches or negligence on my part other than the reasons stated above.” 5. It may be true that the petitioner is not vigilant in prosecuting the matter. In fact there is no proper explanation for WP(C) NO. 5630 of 2007 3 the inordinate delay caused in filing the application for restoration. Taking into consideration the fact that the suit was dismissed for default and there was no consideration of the case of the petitioner on merits, taking a lineant view, the above mentioned IAs are allowed on terms. The Ext.P3 order passed by the Sub Court, Attingal is set aside on condition that the petitioner shall pay a cost of Rs. 3,000/- to the counsel for the respondents 1 and 2 within a period of three weeks from today. If the cost is not paid within the time prescribed by this court, the Writ Petition shall stands dismissed. The Writ Petition is disposed of as above. HARUN-UL-RASHID, JUDGE ln