Allowed

P.R.Danavan v. Anilkumar

Kerala HC19 Nov 2018FAO/200/2017

Case brief

AI extract

What is this about?

In a second appeal regarding the restoration of a civil suit dismissed twice for default, the High Court set aside the lower court's order dismissing the restoration application. The Court directed the lower court to consider the application afresh after affording the appellant a chance to adduce further evidence upon deposit of Rs. 10,000.

What did the court decide?

Impugned order set aside; opportunity to adduce further evidence granted; deposit of Rs. 10,000 required before lower court to re-consider restoration.

P.R.Danavan Vs Anilkumar — Civil Procedure and Limitation | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE K.HARILAL

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THE HONOURABLE MRS. JUSTICE ANNIE JOHN

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MONDAY ,THE 19TH DAY OF NOVEMBER 2018 / 28TH KARTHIKA, 1940

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FAO.No. 200 of 2017

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AGAINST THE ORDER DATED 09-10-2017 IN I.A. NO.1682 OF 2016 IN OS NO.282/2013 of PRINCIPAL SUB COURT,NORTH PARAVUR

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APPELLANT IN F.A.O. -PETITIONER IN I.A. -PLAINTIFF IN SUIT:

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P.R.DANAVAN, S/O.RAJAPPAN, AGED 62, PARAMBATHERIL HOUSE, NEDUVANNUR, CHENGAMANADU-683578.

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BY ADVS.SRI.P.B.KRISHNAN

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SRI.P.B.SUBRAMANYAN SRI.P.M.NEELAKANDAN SRI.SABU GEORGE

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RESPONDENT IN F.A.O. -RESPONDENT IN I.A. -DEFENDANT IN SUIT:

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ANILKUMAR,

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S/O.VELAYUDHAN, AGED 50, KODATH HOUSE, 'PRANAVAM', MANA LANE, BYE LANE-1, HOUSE NO.8, THOTTAKATTUKARA P.O., ALUVA-683108.

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BY ADVS.SRI.K.S.BABU SMT.BOBBY U. NAIR SMT.N.SUDHA SRI.BABU SHANKAR

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THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 19.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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FAO.No. 200 of 2017

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JUDGMENT

K.HARILAL, J.

The appellant is the plaintiff in O.S. No.282 of 2013 on the files of the Principal Sub Court, North Paravur. The above suit was listed for evidence on 08.08.2014. On that day, the appellant was absent and the suit was dismissed for default. Subsequently, the aforesaid suit was restored on 30.05.2016, as per I.A. No.1798 of 2014. Again the suit was listed to 08.08.2016. On that day also, the appellant was absent and the suit was again

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FAO.No. 200 of 2017

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dismissed for default. On the above premises, the appellant preferred I.A. No.1682 of 2016, seeking an order restoring the suit on the files of the court.

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2. According to the appellant, on 08.08.2016, on the listed day, he was sick and was taken to Lourde Hospital, Ernakulam and there, he was under treatment. Since he was laid up in hospital on that day, he could not appear before the court on the date of trial. The appellant further averred that there was no willful negligence or laches from his part, in not appearing before the court, when the case was called on for hearing. Hence, the appellant prayed for an order, restoring the suit on the files.

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3. The respondent resisted the

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application, contending that there is no bona

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FAO.No. 200 of 2017

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fides in the reason for not appearing in the

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court, when the case called on for trial. According to the respondent, the appellant has failed to prove sufficient cause for restoring the suit on the files. No reliance can be placed on the documents produced by the appellant, as the said documents were not proved, in accordance with law.

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4. Heard the learned counsel for the petitioner and the learned counsel for the respondent.

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5. The petition seeking an order for restoring the suit stands dismissed, on the ground that the appellant has failed to prove sufficient cause for his failure to appear before the court, when the case was called on for trial. According to the appellant, he was

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taken to the hospital on that day, and he

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FAO.No. 200 of 2017

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remained in the hospital in connection with the treatment and he could not appear before the court, when the case was called on for trial. It is not disputed that originally the case was listed for evidence on 08.08.2014, and on that day, he could not appear before the court and the suit was dismissed on default. On his application, again the suit was restored and listed to 08.08.2016. On that day also, he could not appear before the court, when the case was called on for trial. He has not produced sufficient evidence to convince the court below, as to the cause of non-appearance. Therefore, we do not find fault with the court below. The appellant has produced Annexures-A to D, to prove the cause for his failure to appear before the court on 08.08.2016.

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FAO.No. 200 of 2017

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6. We are of the opinion that, in view of Annexures A to D, the appellant can be given an opportunity to adduce further evidence before the court below to prove the averments in the application on terms. In the above view, the impugned order will stand set aside, on deposit of Rs.10,000/-(Rupees ten thousand only) before the court below, within a period of two months from today. On compliance, the court below shall consider the application seeking restoration of the suit afresh, after affording an opportunity to adduce further evidence to the appellant.

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7. The Registry is directed to return the documents produced by the appellant to the appellant forthwith, enabling him to produce before the court below. The documents called for from the Lourde Hospital, Ernakulam, shall

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FAO.No. 200 of 2017

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be returned to the hospital forthwith. The parties shall appear before the court below on 20^th December, 2018.

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This F.A.O. is allowed accordingly.

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Sd/K.HARILAL JUDGE

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Sd/ANNIE JOHN JUDGE

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DST

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//TRUE COPY// P.A.TO JUDGE

P.R.Danavan v. Anilkumar

Case brief

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P.R.Danavan v. Anilkumar

Case brief

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