IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 3RD OCTOBER 2008 / 11TH ASWINA 1930 CRP.No. 1070 of 2004() ---------------------- CMA.142/2003 DISTRICT COURT,KOZHIKODE I.A.NO.725 OF 2002 IN OS.1024/1997 of ADDITIONAL MUNSIFF COURT,KOZHIKODE-II REVN. PETITIONER/ APPELLANT/PLAINTIFF: ----------------------------------------- SAROJINI, D/O. CHATHUKUTTY, VALLUVANTHARA PARAMBA, PANNIYANKARA AMSOM DESOM, KOZHIKODE. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENTS/RESPONDENTS/DEFENDANTS: -------------------------------------- 1. VENGALATHUKANDY BALAN, S/O.CHATHUKUTTY, EDAKKETTIL HOUSE, BEYPORE AMSOM DESOM. 2. VENGALATHUKANDY RAJAN, S/O.CHATHUKUTTY, EDAKKETTIL HOUSE, BEYPORE AMSOM DESOM. 3. VENGALATHUKANDY VIJAYAN,S/O.CHATHUKUTTY, EDAKKETTIL HOUSE, BEYPORE AMSOM, DESOM. 4. VENGALATHUKANDY KALLIYANI, D/O. CHATHUKUTTY, EDAKKETTIL HOUSE, BEYPORE AMSOM, DESOM. 5. S.A.MUHAMMED NOOR, S/O. K.N.S.HAJI, ABDUL RAHIMAN LABBA SAHEB, KOLOTHODI PARAMBA, KALLAI, PANNIYANKARA AMSOM, DESOM. 6. RAHAMATHULLA, ABDUL RAHIMAN LABBA SAHEB, KOLOTHODI PARAMBA, KALLAI, PANNIYANKARA AMSOM, DESOM. ADV. SRI.K.A.SALIL NARAYANAN FOR 1 TO 4. SRI.K.M.FIROZ FOR R5 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. -------------------------------------------- C.R.P. NO. 1070 OF 2004 -------------------------------------------- Dated this the 3rd day of October, 2008 O R D E R The plaintiff in O.S. No.1024 of 1997 on the file of the Additional Munsiff's Court, Kozhikode II is the revision petitioner. The revision is directed against the judgment in C.M.A. No.142 of 2003 on the file of the District Court, Kozhikode which was filed against the order in I.A. No.725 of 2002 in O.S. No.1024 of 1997. 2. The suit was filed by the revision petitioner as plaintiff for partition and separate possession of her share in the plaint schedule property. When the suit was listed for trial on 22.1.2002, the plaintiff was absent and hence, the suit was dismissed for default. I.A. No.725 of 2002 was filed by the plaintiff under Order IX Rule 9 C.P.C. for restoration of the suit. It is the case of the plaintiff that on the date when the case was taken up for trial, she was laid up with diarrhoea and was unable to attend the court. She also produced a medical certificate showing the reasons for her absence on 22.1.2002. The application was opposed by the respondents C.R.P. NO. 1070/2004 2 who are the defendants in the suit. The trial court took the view that the petitioner was purposefully absent on the date of trial with a view to prolong the suit and that the present petition for restoration of the suit was filed only to protract the proceedings and dismissed the application. The lower appellate court merely said that the suit being a partition suit, dismissal of the suit for default does not bar the plaintiff from filing a fresh suit. The appellate court further held that in such a suit, an application for restoration under Order IX Rule 9 C.P.C. is not maintainable and dismissed the appeal stating that there are no sufficient grounds for restoration of the suit. 3. It is true that in a suit for partition, the cause of action is continuous. But, that is not a reason for not restoring the suit which was dismissed for default if sufficient cause is shown by the party. The suit was dismissed on 22.1.2002. Application for restoration was filed on 30.1.2002. Referring to certain inconsistent testimony of PW.1, the lower appellate court formed an opinion that there has been gross negligence and grave misconduct on her part in prosecuting the case. Even before conducting the trial, the fact finding courts concluded that the suit will be decided against the revision petitioner/plaintiff. C.R.P. NO. 1070/2004 3 4. To me, it appears that most of the reasons stated for non suiting the petitioner/plaintiff in her application for restoration are not correct. The application for restoration was filed within a few days of the dismissal of the suit. The petitioner/plaintiff was examined as PW.1 and she had produced a medical certificate in support of her contention. This shows her bona fides. If the application was allowed within a week or so, nobody could have said that the application was filed to protract the proceedings of the suit. The trial court stated that there is no bona fides in prosecuting the matter and that the intention of the plaintiff was to protract the proceedings of the suit. The trial court concluded that there was no evidence to prove that the petitioner/plaintiff was laid up which prevented her from appearing before the court. The reasons stated by the trial court cannot be accepted. The evidence of PW.1 and the medical certificate produced by her supports her case. The lower appellate court went further in holding that the application under Order IX Rule 9 C.P.C. is not maintainable. Every plaintiff, in such circumstances, resorts to Order IX Rule 9 C.P.C. and the plaintiffs in a partition suit are not barred from appearing before the court for restoring a suit whenever the suit is dismissed for default. The dismissal of the application for restoration by the trial court which was confirmed by the lower appellate court has resulted in the suit being kept prolonged for about 11 years for no fault of C.R.P. NO. 1070/2004 4 either party. The suit could have been disposed of years back. 5. In the facts and circumstances of the case, I accept the reasons stated for restoration of the suit and allow I.A. No.725 of 2002. The trial court is directed to expedite trial of the suit and dispose of the same within a period of six months from today on condition that the revision petitioner pays Rs.3,000/- as costs to counsel appearing for respondents 5 and 6 within a period of one month from today. If the cost ordered is not paid with the time fixed by this Court, the application for restoration will automatically stand dismissed. The Civil Revision Petition is disposed of as above. The parties shall appear before the trial court on 5.11.2008. There will be no order as to costs. (HARUN-UL-RASHID, JUDGE) sp/ C.R.P. NO. 1070/2004 5 HAURN-UL-RASHID, J. C.R.P. NO. 1070/2004 O R D E R 3rd October, 2008