MATHAI Vs. ROSAMMA

JUDGEMENT

(1.) The first counter petitioner in I. A. No. 4541 of 1989 (first defendant in O. S. No. 258 of 1984), Principal Sub Court, Kottayam, is the revision petitioner. The petitioner and the second counter petitioner in the court below (plaintiff and the second defendant in the suit) are the respondents herein. The first respondent herein (the plaintiff in the suit) filed a petition for restoration of the suit dismissed for default, to file. The court below allowed the same, by order dated 5-12-1990. The first defendant has come up in revision, against the afore - said order passed by the court below.

(2.) I heard counsel for the revision petitioner, Mr. K. C. John, as also counsel for the first respondent, Mr. Roy Chacko.

(3.) The revision petitioner and the first respondent are the husband and wife. There seems to be some difference of opinion between them. The suit was filed as early as in 1984. The suit was filed and conducted in the lower court by the plaintiff through a power of attorney holder. The revision petitioner herein (first defendant) filed I. A. No. 2215 of 1P85 for directing the plaintiff to appear in person in the court. The court below allowed the said application, on 30-8-1986. This is an order rendered under O.3 R.1 of the Code of Civil Procedure. The case was posted to 4-1-1988. On that day, neither the plaintiff nor her power of attorney holder was present. The suit was dismissed. The power of attorney holder filed an application for restoration of the suit. The court below noticed that the power of attorney holder was present at the time of roll call and the same presiding officer, who dismissed the suit, allowed the application for restoration. The revision petitioner herein filed C. R. P. No. 528 of 1989 in this Court. This Court noticed the fact that the suit was dismissed holding that the plaintiff and her power of attorney holder were absent; since it was proved that the power of attorney holder was present, it was held that the restoration ordered by the court below does not merit interference in revision by this Court under S.115 of the Code of Civil Procedure.