Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW THURSDAY, THE20H DAY OF FEBRUARY20141ST PHALGUNA, 1935 FAO.No. 242 of 2011 ( ) ------------------------ AGAINST THE ORDER
IN I.A.NO.8668/2009 IN OS1952007 of II ADDL.SUB OURT,ERNAKULAM APPELLANTS/PLAINTIFFS: ------------------------ 1. VENUGOPALAN NAIR, AGED50YEARS, S/O.KRISHNA PILLAI, RESIDENT OF CHITHIRAM HOUSE VATTIYOORKAVU VILLAGE, THIRUVANANTHAPURAM DISTRICT REPRESENTED BY HIS POWER OF ATTORNEY HOLDER N.GOPALAKRISHNAN NAIR, AGED70YEARS, S/O.NARAYANA PILLAI, HOUSE NO.14, SREENAGAR, MANAKKADU P.O. MANAKKADU VILLAGE, THIRUVANANTHAPURAM2 M/S. HOTEL VENUS INTERNATIONAL,REP BY SOLE PROPRIETOR, K.VENUGOPALAN NAIR, AGED50YEARS S/O.KRISHNA PILLAI, S.S. KOVIL ROAD, THAMMANOOR THIRUVANANTHAPURAM, REP THROUGH HIS P/A N.GOPALAKRISHNAN NAIR, AGED70YEARS, S/O.NARAYANA PILLAI, HOUSE NO.14, SREENAGAR, MANAKKADU P.O. MANAKKADU VILLAGE, THIRUVANANTHAPURAM3 M/S. ANSU ENTERPRISES, REP BY PARNTER VIJAYA VIKRAMAN NAIR, AGED52YEARS, W/O.VIKRAMAN NAIR, VINITHA BHAVAN, T.C.10/1250 MANNARAKONAM, VATTIYOORKAVU VILLAGE, TVM REP THROUTH HIS P/A, N.GOPALAKRISHNAN NAIR AGED70YEARS, S/O.NARAYANA PILLAI HOUSE NO.14, SREENAGAR, MANAKKADU P.O. MANAKKADU VILLAGE, THIRUVANANTHAPURAM BY ADV. SRI.G.S.REGHUNATH RESPONDENTS/DEFENDANTS: ---------------------------- 1. GOSREE DEVELOPMENT AUTHORITY REPRESENTED BY ITS SECRETARY, PARK AVENUE COCHIN682016.
2. THE SECRETARY GOSREE DEVELOPMENT AUTHORITY, PARK AVENUE COCHIN682016., DISTRICT COLLECTOR, ERNAKULAM.
3. STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY GOVERNMENT OF KERALA, THIRUVANANTHAPURAM695001. BY ADV. SRI.VARGHESE K.PAUL THIS FIRST APPEAL FROM ORDER
S HAVING BEEN FINALLY HEARD ON2002-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: T.R.RAMACHANDRAN NAIR & K.ABRAHAM MATHEW,JJ.
- - - - - - - - - - - - - - - - - - - - - F.A.O.No.242 OF2011- - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of February, 2014 JUDGMENT
Ramachandran Nair, J.
The order under challenge is one passed in I.A.No.8668/2009 in O.S.No.195/2007 of the Sub Court, Ernakulam. The plaintiffs represented by their power of attorney holder are the appellants herein.
2. The suit is for recovery of ` 12,89,15,695/- together with future interest and costs. In the memorandum of appeal, it is stated that, the first plaintiff is a non-resident Indian having business in different parts of the Gulf countries and he is the sole proprietor of the 2nd plaintiff and is also a partner of third plaintiff. They are represented by the power of attorney holder Sri.N.Gopalakrishnan Nair.
3. The case was included in the list and posted for trial on 15/09/2009 and detailed proof affidavit was filed and documents A1 to A31 were also produced. In paragraph 7 of the appeal memorandum, it is stated that, the power of attorney holder had to undergo a major heart FAO No.242/2011 2 surgery and was advised to take complete bed rest in the year 2009. Even though an Advocate Commissioner was appointed to examine PW1, that also could not be done due to the illness of the power of attorney holder. Various other details have been pleaded in the appeal memorandum. It is stated that in the absence of evidence by the plaintiffs, defence evidence was completed and the suit was ultimately dismissed on 30.10.2009. Thereafter, the present I.A. was filed seeking to set aside the order of dismissal and to restore the suit.
4. We heard Sri.G.S.Reghunath, the learned counsel appearing for the appellants and Sri.Vinod Bhat, the learned counsel appearing for the respondents. It is submitted by the learned counsel for the appellants that high stakes are involved in the matter and therefore an opportunity may be granted to contest the matter on merits. It is submitted that due to unforeseen circumstances, the power of attorney holder could not appear on various dates and even in the I.A. filed to set aside the ex parte decree. The medical certificates could not be produced also. It is submitted that assuming that there are laches on the part of the appellants, one more opportunity should be given to adduce evidence in support of the pleas of the appellants. He relied FAO No.242/2011 3 upon the judgment of the Apex Court in Raj Kishore Pandey v. State of Uttar Pradesh and Others (2009 (2) Supreme Court Cases 692), wherein the view taken is that, a case as far as possible should be decided on merits and the party should not be deprived of getting the case examined on merits.
5. Sri.Vinod Bhat, the learned counsel appearing for the respondents, submits that it is a case where the plaintiffs were taking adjournments on different occasions, which is clear from the recordings in the judgment of the trial court. It is submitted that the conduct of the plaintiffs and their power of attorney holder has been comment upon by the trial court in the judgment and even in the present order. The learned counsel therefore submitted that, it is not a case where indulgence can be shown by this court to the appellants. He also relied upon the judgment of the Apex Court in Shiv Contex v. Tirgun Auto Plast Private Limited and Others ( 2011 (9) Supreme Court Cases 678) to advance a case that the Apex Court has comment upon the attitude of the parties in seeking adjournments unnecessarily and relied upon paragraphs 16 and 17 of the judgment.
6. We have considered the rival submissions. In paragraphs FAO No.242/2011 4 14 and 15 of the impugned order, the learned Judge has addressed the pleas raised by the appellants. The various steps taken to allow the evidence to be adduced have also been detailed. It is observed that the application for restoration of the suit will have to be considered liberally, but found that the conduct of the plaintiffs has led to the dismissal of the suit. It has been stated that even when the present petition was posted for evidence on different dates and finally on 29.5.2010, no evidence was adduced. It was submitted that the petitioner has no evidence.
7. Sri.G.S.Reghunath, the learned counsel for the appellants submitted that the appellants are possessed of various medical certificates in support of their application and if an opportunity is given, the power of attorney holder, who has recovered now, can be examined to prove the same. In paragraph 17 of the order, what is observed by the court is that Ext.A5 to A29 mentioned in the proof affidavit were not admitted in evidence as they are inadmissible documents. It is explained by the learned counsel for the appellants that they were documents obtained from the bank. Whatever that be, we are not going into the details of the same. Since we are of the FAO No.242/2011 5 view that highest stakes are involved as far as the parties are concerned and there were various previous litigations between the parties concerned, which had reached upto the Apex Court, it is only proper that one more opportunity be granted to the appellants to adduce evidence in respect of I.A.No.8668/2009. The same will only advance the cause of justice. Accordingly, we allow the appeal and set aside the order in I.A.No.8668/2009. The same will be on condition of payment of ` 25,000/- ( Rupees twenty five thousand only) as costs to the respondents 1 and 2 herein, which will be paid within two weeks from today through the learned counsel appearing for the respondents 1 and 2 before this court and a memo will be filed before this court. The court below will expedite the disposal of the matter. The parties will appear before the trial court on 20/03/2014 without fail. T.R.RAMACHANDRAN NAIR, JUDGE sv. K.ABRAHAM MATHEW, JUDGE FAO No.242/2011 6