JESS RAPHAEL Vs. JOSEPH

JUDGEMENT

(1.) The above C.M.A. is filed against the order in I.A.No.3019 of 1992 in O.S. No.419 of 1985 of the Additional Sub Court, Ernakulam. Plaintiffs in the suit are the appellants. The suit was filed by them informa pauperis. The suit was filed for damages. First plaintiff is a Medical Practitional conducting a nursing home under the name and style 'Pavanathara Nursing Home' at Ernakulam. Second plaintiff is the wife of the first defendant. Plaint schedule property belongs to defendants 1 and 2, which has been leased out to the first plaintiff as per lease deed dated 20.4.1971. According to the plaintiffs, defendants have been taking coercive steps to vacate the building. With that view, the defendants committed criminal trespass and caused serious damages to the property and the Nursing Home. They filed R.C.P. to evict the plaintiffs, but same was dismissed.

(2.) As already stated, the suit was filed for realisation of damages as indigent persons. Notice was issued to the Government Pleader and the respondent on 8.10.1985. The court allowed the plaintiffs to prosecute the suit as indigent persons. Against the order allowing the plaintiffs to file the suit informa pauperis, defendants filed a revision before this Court as C.R.P. No.5 of 1986. C.R.P. No.5 of 1986 was dismissed by order dated 22.7.1987. It seems, against the order in the Civil Revision Petition, defendants filed S.L.P., but that was also dismissed. From 17.7.1986, the suit was being adjourned, because the matter was pending in the High Court. The court awaited for records.

(3.) From the proceedings, it is seen that the records were received on 31.10.1991. On that day, the court ordered summons to the defendants and posted the case to 29.11.1991. On 29.11.1991, again the court ordered issue of summons to the defendants. On 9.1.1992, the court ordered issue of fresh summons in the correct address. Further endorsements on 29.1.1992 and on 10.4.1992 are to issue fresh summons. On 22.6.1992, there was no representation and there was no representation and there was no steps taken. So, the case was posted on 24.6.1992. On that day, since there was no representation, the suit was dismissed for default. On 27.6.1992, i.e., two days later, the plaintiffs filed LA. No.3019 of 1992 to set aside the order dismissing the suit and to restore the suit to file. Along with the I.A., an affidavit was filed by the plaintiffs. In Para.4 of the affidavit, it is stated that from 31.1.1987 to 31.10.1991, the court awaited for records. Plaintiffs further states that he had engaged to Advocates, viz., Smt. Annamma Alexander and Sri.A. Shahul Hameed. Smt. Annamma Alexander died in April, 1991. First plaintiff further states that he was not aware of the last three postings of the case. He was not aware of that postings due to reasons beyond his control. He has also stated that the subsequent postings of the case were also not known to him. Further, it is stated that he was under the bona fide belief that the records did not return from this Court. Petition was filed immediately to restore the suit. This application was heard on 17.8.1992 and by the impugned order, it was dismissed.