IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 1ST SEPTEMBER 2011 / 10TH BHADRA 1933 OP(C).NO. 2862 OF 2011(O) ----------------------------- OP.7/2011 OF PRL.SUB COURT,KOTTAYAM .................... PETITIONER: ------------------ ALEYKUTTY V.M,W/O.M.B.SREEDHARAN, 54 YEARS, VADAKKEMURI HOUSE, CHAMPAKARA KARA,KARUKACHAL VILLAGE,KOTTAYAM DIST BY ADV. SRI.JOSEKUTTY MATHEW RESPONDENT(S): -------------------------- 1. THANKAMMA,W/O.BALAKRISHNAN,52 YEARS, VAZHAVELIL HOUSE,NEDUMKUNNAM KARA, NEDUMKUNNAM VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT-686002 2. DIRECTOR LOTTERY THIRUVANANTHAPURAM-695001 3. THE DISTRICT COLLECTOR, KOTTAYAM-686002 BY GOVERNMENT PLEADER SHRI T.K.SAJEEV R2 & 3 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 01/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P(C) NO.2862 OF 2011 APPENDIX PETITIONER(S)' EXHIBITS: EXHIBIT P1 CERTIFIED COPY OF O.P(IND.) NO.7 OF 2001 DATED 23.2.2001 BEFORE THE PRINCIPAL SUB COURT, KOTTAYAM. EXHIBIT P2 COMMON ORDER IN I.A. NO.4231 OF 2008 AND 4232 OF 2008 DATED 15.10,2009 IN O.P(IND.) NO.7 OF 2001 BEFORE THE PRINCIPAL SUB COURT, KOTTAYAM. RESPONDENT(S)' EXHIBITS: NIL TRUE COPY P.S. TO JUDGE THOMAS P.JOSEPH, J. ==================================== O.P(C) No.2862 of 2011 ==================================== Dated this the 01st day of September, 2011 J U D G M E N T Petitioner is the plaintiff in O.P(Ind.) No.7 of 2001 of the court of learned Principal Sub Judge, Kottayam. That was a suit filed by the petitioner as an indigent person seeking a declaration that she is entitled to one half of the prize amount of the Kerala Lottery which won the first prize and for injunction against the second respondent disbursing the same to the first respondent. That petition was dismissed for default on 07.08.2003 when it was posted for evidence as petitioner did not turn up. Petitioner filed I.A. No.3052 of 2006 for restoration (after three years) of O.P (Ind.) No.7 of 2001. That application was dismissed for default on 10.02.2007. Petitioner the filed I.A. Nos.1855 and 1856 of 2007 to restore I.A. No.3052 of 2006 and condone the delay in filing that application. Those applications were dismissed on 02.06.2008. Petitioner filed I.A. Nos.4231 and 4232 of 2008 to restore I.A. Nos.1855 and 1856 of 2007 and to condone the delay stating that when those applications were taken up for hearing on 02.06.2008, her counsel was hospitalized. It is also stated that when O.P(Ind.) No.7 of 2001 was taken up for hearing on 07.08.2003, she was O.P(C) No.2862 of 2011 -: 2 :- attending her husband who was admitted in the hospital for psychic problems. Learned Sub Judge by Ext.P2, order dismissed I.A. Nos.4231 and 4232 of 2008 on 15.10.2009. Almost two years thereafter, petitioner has filed this petition on 11.08.2011 invoking Article 227 of the Constitution challenging that order. 2. Learned counsel for petitioner submitted that evidence on record revealed that petitioner was looking after her mentally deranged husband who has even undergone hospitalization during the relevant time. There was no willful laches or default on her part and having regard to the impecunious condition of petitioner and the nature of the claim she has made, petitioner may be given an opportunity to prosecute I.A. Nos.1855 and 1856 of 2007. My attention is also drawn to Exts.A1 to A3 proved through petitioner when examined as P.W.1. 3. Exhibit A1 is the certificate issued by a Psychiatrist stating that one Sreedharan (said to be the husband of petitioner) was a patient under him for Schizophrenia from February, 2002 onwards. Exhibits A2 series and A3 are O.P Card cum treatment cards of the said person. But the evidence of petitioner as P.W.1 would show that during 1992, she was O.P(C) No.2862 of 2011 -: 3 :- employed in a Maveli store. Before that, she was working as an Anganwadi Teacher for about twelve years and even prior to that, she was working as a Peon in a school. She also stated that she was attending to her duties as such during the period of Exts.A1 to A3 (during the time she is stated to have been looking after her husband). Thus, it was not as if petitioner could not have made any enquiry about the proceeding court and attended the court. 4. First respondent produced Ext.B1, copy of judgment of this Court where it is stated that first respondent was entitled to receive the amount under challenge to the exclusion of petitioner as per the prized ticket. 5. It is seen that O.P(Ind.) No.7 of 2001 was dismissed on 07.08.2003 and thereafter all the applications which petitioner filed for restoration of that petition and subsequent applications were all dismissed for default. Since evidence of petitioner revealed that during the relevant time she was attending to her duties I am unable to act upon Exts.A1 to A3 and think that she could not have enquired about the case or attended the court. There is a dismissal of O.P(Ind.) No.7 of 2001 on 07.08.2003 which is sought to be unsettled after about 8 years, particularly in the light of Ext.B1, judgment. I must also bear in mind that O.P(C) No.2862 of 2011 -: 4 :- Ext.P2, order was passed on 15.10.2009 and this petition is filed only on 11.8.2011. I do not find reason to interfere with the Ext.P2, order. Original Petition is dismissed. THOMAS P. JOSEPH, JUDGE. vsv