IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 3RD MARCH 2010 / 12TH PHALGUNA 1931 CRP.No. 817 of 2006() --------------------- CMA.14/2005 of SUB COURT, TIRUR I.A.NO.1665/04 IN OS.211/2001 of MUNSIFF'S COURT,PARAPPANANGADI .................... PETITIONER(S): APPELLANTS/PETITIONERS/PLAINTIFFS: -------------------------------------------------------------------------------------- 1. KOCHAL UMMER HAJI, S/O.PILLATT VALLIYADATH MAMMU HAJI, PAZHASI AMSOM, MATTANUR DESOM, THALASSERI TALUK, KANNUR DISTRICT. 2. HAMZA, S/O.MOOCHIKKOOTTATHIL MUHAMMED @ BAPPU, REPRESENTED BY MUKTHIAR AGENT 'MOOSAKOYA, S/O.VELUTHEDATH MARAKKARUTTY, VATTASSERI AMSOM, MUTTANURKODE DESOM, OTTAPPALAM TALUK. BY ADVS. MR.K.RAMACHANDRAN, SMT.R.MEERA. RESPONDENT(S): RESPONDENTS/RESPONDENTS/DEFENDANTS: -------------------------------------------------------------------------------------------------- 1. ABDURAHIMAN, S/O.HASSAN HAJI, PARAPPAN HOUSE, TIRURANGADI AMSOM, VENNIYUR DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT. 2. USMAN, DO. DO. 3. ASSEERA, D/O.ABDUL SALAM, MANDADANCHERY HOUSE, KASBA AMSOM DESOM, KOZHIKODE TALUK. R1 BY ADV. MR.K.JAYAKUMAR THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss S.S.SATHEESACHANDRAN, J ------------------------------------- C.R.P No.817 OF 2006 -------------------------------- Dated this the 3rd day of March 2010 ORDER Revision is directed against the concurrent finding entered by two inferior courts that petitioners/plaintiffs have not made out sufficient cause for restoration of their suit dismissed for default. Suit was one for recovery of possession, and in view of default of the plaintiffs to appear when the case was posted for trial, it was dismissed. Application moved by the petitioners/plaintiffs under Order 9 Rule 9 of the Code of Civil Procedure for restoring the suit was resisted by the respondents/defendants contending that there is no merit in the cause canvassed for their absence before the court when the case was scheduled for trial. In the enquiry over the restoration application, power of attorney of the plaintiffs was examined as PW1 and a medical certificate issued by a doctor was exhibited as Ext.A1. On the side of the respondents, one of the defendants was examined as RW1 and Exts.B1 to B4 were exhibited. On the materials exhibited and hearing the counsel on both sides, the learned Sub Judge found that the plaintiffs have not made out sufficient cause for restoring the suit, with the result, the application moved thereof was dismissed. In appeal, the learned Sub Judge after reappreciating the materials tendered and C.R.P No.817 OF 2006 Page numbers hearing the counsel on both sides concurred with the finding arrived by the learned Munsiff that no sufficient cause was made out for exercise of discretion of the court to restore the suit. The appeal was thereupon dismissed. 2. I heard the counsel on both sides. Perusing the impugned order of the learned Munsiff and also the judgment of the learned Sub Judge, it is seen, both the courts have meticulously considered the materials produced in the case to form a conclusion that the plaintiffs have not made out sufficient cause for restoring the suit. It is seen that the medical certificate produced to substantiate the illness of the plaintiffs was not even signed by a medical practitioner. The suit had been previously dismissed with the counsel for the plaintiffs reporting no instructions. However, later, on an application moved by the plaintiffs it was restored to file. Yet again it was dismissed for default. In the enquiry over the restoration application only the power of attorney appeared before the court despite the defendants setting up a challenge that the suit has been fraudulently instituted at his instance. When the power of attorney was examined as PW1, as seen from the order of the learned Munsiff, he could not give even the correct and full details of the plaintiffs. Even after the case was restored to file after dismissal on the previous occasion, the order of the learned Munsiff reflects that there were deliberate latches and wilful default on the part of C.R.P No.817 OF 2006 Page numbers the plaintiffs even to take out the commission and the directions to produce all documents for identification of the property. The commission application was thereupon dismissed. Suit being one in which a decree for recovery of possession was asked for, needless to point out that dismissal of the commission application was fatal. The learned counsel for the respondents submits that the commission application was dismissed not once, but twice. At the first instance, before the dismissal of the suit for default, the commissioner had reported there was no cooperation from the plaintiffs to execute the commission order. There was default on the part of the plaintiffs even to deposit the commission bata, according to the counsel, and that resulted in dismissal of the commission application. After restoration of the suit also, the commission application was dismissed again on account of the latches of the plaintiffs. Submissions so made remain uncontroverted. In such circumstances, I find, both the courts have come to the right conclusion that there is no merit in the application moved by the plaintiffs for restoring the suit. Revision lacks merit, and it is dismissed. Sd/- S.S.SATHEESACHANDRAN JUDGE //TRUE COPY// vdv P.A TO JUDGE