IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 26TH MARCH 2008 / 6TH CHAITHRA 1930 WP(C).No. 9682 of 2008(C) ------------------------- AGAINST THE ORDER DATED / / IN RP 1/2007 IN CMA.23/2007 of I ADDL.DISTRICT COURT, ERNAKULAM .................... PETITIONER: ------------ PIBY PAUL, AGED 32, S/O PAUL, AMBANAPILLY HOUSE, VAZHAKKULAM KARA, MUVATTUPUZHA, IMPLOYED AT SAN FRANSISCO, REP. BY HIS POWER OR ATTORNEY HOLDER K.V.PAILY, AGED 65, S/O VARKEY, RESLIDING AT AMBANAPILLY HOUSE, VAZHAKKULAM KARA, MUVATTUPUZHA. BY ADV. SRI.P.N.RAMAKRISHNAN NAIR SRI.P.VISWANATHAN SRI.AJU MATHEW RESPONDENTS: ------------- 1. SRI. K.A.JOSEPH, AGED 54, S/O ANTONY, KURIKAYAIL HOUSE, INDIRA SMARAKA ROAD, VYTTILA DESOM, POONITHURA VILLAGE, KANAYANNUR TALUK, KOCHI-682019. 2. CORPORATION OF KOCHI, REPRESENTED BY THE SECRETARY, OFFICE OF THE CORPORATION OF KOCHI, ERNAKULAM, KOCHI-682 011. BY ADV. SRI.C.M.SURESH BABU,SC,COCHIN CORPORATI R2 BY SHRI.S.RAMESH BABU, THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J ===================== W.P.(C) No.9682 OF 2008 ===================== Dated this the 26th day of March 2008 JUDGMENT This writ petition is preferred with a prayer to set aside Exts.P4 and P9. This is a case which involves unfortunate circumstances for the reason that the court while disposing of the C.M.A recorded that the counsel for the appellant had undertaken certain factors and therefore on the basis of that undertaking which is recorded by the court an order is passed. Thereafter it was submitted before the court that the Advocate has not made any such concession and an affidavit of the Advocate is also filed. So, whatever it may be, the matter has been decided by the appellate court only on the basis of the statements alleged to be made by the counsel and the dispute is whether any such statement is made at all by the counsel. It is really an embarrassment. It has also to be stated that time and again this court had indicated that when an order is passed on the basis of a concession made by a counsel or a party it is desirable to get it endorsed in the suit records so that the party or the counsel cannot detract from that. It is submitted by the learned counsel for the petitioner that the Lawyer who appeared before the WP(C) 9682/2008 -:2:- appellate court is a senior Lawyer and he will not swear to an affidavit against the truth and that also may be taken note of by the court. So, to avoid this embarrassment I feel the only way out is to direct the court below, viz., the District Court to dispose of the C.M.A on merits after hearing both sides. Till such an order is passed, the present order will remain in force. Therefore the judgment passed in the C.M.A is set aside and the court is directed to consider C.M.A.No.23 of 2007 afresh and dispose it of in accordance with law after hearing all concerned. Writ petition is disposed of accordingly. M.N.KRISHNAN, JUDGE Cdp/-