Failure to appear for trial without sufficient justification results in the affirmation of lower court's dismissal of restoration applications.

P.Krishna Kumar, J.

This appeal is preferred against the order passed by the Subordinate Judge’s Court, Mavelikkara in I.A. No.1/2022 in O.S. No.192/2008. The said application was filed by the appellants seeking restoration of a petition filed for setting aside the ex parte decree passed in the suit. By the impugned order, the said application was dismissed.

2. According to the appellants, when the case was posted for trial on 09.02.2021, their counsel could not reach the court as his vehicle broke down on the way, and consequently, the appellants were set ex parte. It is further stated that, though the above Interlocutory Application for setting aside the ex parte decree was, on 22.03.2022, posted to 01.06.2022, the advocate clerk erroneously noted the posting date as

01.09.2022. In these circumstances, when the I.A. was called on 01.06.2022, the appellants could not appear before the court, and the matter was adjourned to 01.07.2022, on which date the application was dismissed for default. The appellants further contend that their counsel came to know of the dismissal only on 01.08.2022, when the advocate clerk reached the court to cure the defects.

3. We have heard the learned counsel for the appellants and the respondents.

4. The learned counsel for the appellants persuasively contended that the lapses occurred solely due to the unfortunate circumstances explained above, and therefore, the appellants may be afforded an opportunity to contest the matter on merits.

5. Per contra, the learned counsel for the respondents submitted that the conduct of the appellants has been willful and deliberate, and that the suit has been protracted since 2008 on one pretext or another. It was contended that, at every stage of the proceedings, the appellants attempted to delay the progress of the suit. It is also pointed out that, instead of filing the present appeal at the first instance, the appellants initially approached the District Court and thereafter filed this appeal with a delay of 475 days.

6. Having considered the materials on record and the submissions made at the Bar, we are of the view that the appeal lacks merit. The explanations offered by the appellants, commencing from their non-appearance on the date of trial, are wholly unconvincing. Even assuming that the counsel was unable to appear, no explanation whatsoever is forthcoming as to why the appellants themselves remained absent when the case was posted for trial. The explanation offered in respect of the dismissal of I.A. No.2/2021 also appears doubtful. It is evident from the pleadings of the appellants that the application was defective and that no steps were taken to cure the defects at least until 01.08.2022. The trial court has also noted that the appellants had sought unnecessary adjournments even in respect of the restoration application and that the application lacked bona fides. In the above circumstances, we find no reason to interfere with the impugned order.

As a result, the appeal is dismissed.