IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 5TH JUNE 2009 / 15TH JYAISHTA 1931 FAO.No. 112 of 2009() --------------------- AGAINST THE ORDER IN IA.2025/2008 OS 166 1995 IN of PRINCIPAL SUB COURT,ALAPPUZHA .................... PETITIONER/DEFENDANT: -------------------------------------- R.JAYAKRISHNAN, AGED 48 YEARS, S/O.RAMACHANDRAN, HASTHINAPURAM ESTATE, KARUVATTA P.O., ALAPPUZHA. BY ADV. SRI.K.S.HARIHARAPUTHRAN RESPONDENT(S)/COUNTER PETITIONER/PLAINTIFF: ------------------------------------------------------------------------- THE KERALA STATE COIR CORPORATION LTD., ALAPPUZHA, REPRESENTED BY ITS MANAGING DIRECTOR. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 05/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 112 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of June, 2009. JUDGMENT Raman, J, The prayer is to set aside the final decree passed in O.S. No.166 of 1995 alleging that the petitioner was not served with any notice. Counter affidavit has been filed by the respondent opposing the prayer and also contending that the appellant-petitioner was represented through counsel throughout the case. Final decree was passed on 1.3.2007. But the present application was filed only on 5.9.2008. The court below perused the order sheet and found that in I.A. 654 of 2003, the petitioner was represented through counsel and application was adjourned for filing objection to the audit report. The endorsement in I.A. 1005 of 2006 also shows that the copy of the petition was accepted by the counsel for the respondent, that is the present petitioner- appellant. The proceedings dated 5.6.2003 in I.A.655 of 2003 further showed that the respondent appeared through counsel and prayed for counter and posted to 28.6.2003. Therefore, the court from the above record sheet found that Sri.Jayakrishnan was properly represented by his Advocate in all the proceedings. Therefore it is not one occasion FAO.112/2009. 2 but on several occasions representation was there on behalf of the appellant by his counsel. This is clearly a question of fact. Once the court entered a finding to that effect, we cannot set aside the said observation unless there is clinching evidence to disprove the same. Counsel who appeared before the court below has not filed any affidavit before this court controverting the statement of fact as observed by the court below. In such circumstances, we are unable to accept the contention raised. The appeal is dismissed. However, this will not stand in the way of the appellant seeking review of the order and adducing evidence if any, if his counsel has got a case that he was not appeared for the appellant in any of the previous postings. P.R. Raman, Judge P. Bhavadasan, Judge sb.