IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 28TH OCTOBER 2010 / 6TH KARTHIKA 1932 RFA.No. 505 of 2010() --------------------- OS.134/2007 of PRINCIPAL SUB COURT,ERNAKULAM .................... APPELLANT/PLAINTIFF --------------------------------------- KURIAKOSE ELIAS PAAREL @ JIJU PAAREL S/O.P.T.ELIAS,AGED 43 YEARS,RESIDING AT PAAREL HOUSE,RAILWAY STATION ROAD,IRINJALAKUDA,NOW RESIDING AT 2A,SHARON NEST,VAZHAKKALA, KOCHI-30. BY ADV. SRI.P.RADHAKRISHNAN (1) SRI.MADHU RADHAKRISHNAN SRI.NELSON JOSEPH RESPONDENT(S): RESPONDENTS -------------------------- 1. SARASAN.M.P,S/O.PADMANABHAN,AGED NOT KNOWN,MAKKEVELINIL HOUSE,NADAKKAVU,UDAYAMPEROOR, THRIPUNITHURA,ERNAKULAM PIN 682 307. 2. SOUTHERN RAILWAYS,M.M.COMPLEX,CHENNAI-2, REP.BY ITS GENERAL MANAGER. 3. UNION OF INDIA,REP.BY THE SECRETARY, MINISTRY OF RAILWAYS,NEW DELHI. R1 BY ADV. SRI.K.S.BABU SMT.N.SUDHA R2, R3 BY ADV.SRI.M.C.CHERIAN,SR.SC. THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 28/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & P. BHAVADASAN, JJ. ------------------------------------------- R.F.A.No.505 OF 2010 ------------------------------------------- Dated this the 28th day of October, 2010 JUDGMENT Thottathil B.Radhakrishnan, J. The plaintiff in a suit for compensation is the appellant. According to him, he parked a vehicle belonging to him in the parking lot of the Ernakulam North Railway Station. It is stated that the first defendant was the contractor in charge of the parking lot. The vehicle was lost from that premises. The plaintiff sued the contractor and Southern Railway for compensation. Later, Union of India was also impleaded as additional defendant. It appears that during the course of trial, the plaintiff and his witnesses were examined. But at that time, first defendant remained ex parte. Later, when the ex parte order as against the first defendant was set aside, he was entitled to have the plaintiff and PW2 recalled and examined. However, the plaintiff and PW2 could not appear on the date fixed for such re-examination. The plaintiff attributes this to different matters, including his non availability in town in RFA.505/10 2 connection with his avocation. The court below proceeded and decided the suit on merits by stating that since PWs.1 and 2 are not present for being cross examined, their evidence against defendants 1 and 3 has to be discarded. In our view, this approach adopted by the court below has essentially resulted in the plaintiff being denied a proper trial. For the aforesaid reasons, we set aside the impugned decree and judgment and remit the matter for re-trial in accordance with law, after giving the parties appropriate opportunity to adduce evidence and of being heard. Having regard to the reasons for the remand, we order refund of the entire court fee paid on the appeal memorandum. Parties to appear before the court below on 15.11.2010. Transmit the LCR and copy of the judgment to the court below. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- P.BHAVADASAN, kkb.3/11. Judge.