IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 2ND JULY 2008 / 11TH ASHADHA 1930 CRP.No. 511 of 2008() --------------------- AGAINST THE ORDER DATED 27/02/2008 IN IA.1609/2006 IN OS.736/1999 of ADDL.MUNSIFF COURT.,KOTTAYAM .................... REVN. PETITIONER: PETITIONERS/COUNTER PETITIONERS/DEFENDANTS ---------------------- 1. ANNAMMA KURIAKOSE, MYLAKKATTU HOUSE, MANARCADU P.O., KOTTAYAM. 2. M.C.JACOB, S/O.CHACKO, MYLAKATTU HOUSE, VELLOOR P.O., PAMPADY. BY ADV. SRI.RAJEEV V.KURUP SMT.A.SREEKALA RESPONDENTS: PETITIONERS/NOT A PARTY TO THE ORIGINAL SUIT --------------------------------------------------------- 1. INDIRA ABRAHAM, W/O.T.C.ABRAHAM, THARAKUNNEL HOUSE, PAMPADY P.O. KOTTAYAM. 2. SHERIN ABRAHAM, D/O. OF DO. DO. DO. BY THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/07/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- C.R.P.No.511 of 2008 ------------------------------- Dated this the 2nd July, 2008. O R D E R Petitioners are the defendants in O.S.No.736 of 1999, on the file of the Additional Munsiff Court, Kottayam. The suit was filed by the husband of the first respondent and father of the second respondent. It is a suit for injunction. Subsequent to the filing of that suit, T.C.Abraham, the plaintiff, transferred his rights in favour of the respondents. They did not got themselves impleaded in the suit. Petitioners on their part instituted a separate suit seeking decree for declaration and injunction. Both suits were tried jointly. On failure on the part of the plaintiff in O.S.No.736/1999 to appear, that suit was dismissed for default. As he is the defendant in other suit, the suit instituted by petitioners was decreed ex parte. I.A.Nos. 1609 and 1610 of 2006 were filed by the respondents to restore the suit, which was dismissed for default, and to condone the delay in filing the petition to restore the suit. I.A.No.2929/2006 was filed to get respondents 1 and 2 impleaded in the suit, on restoration. Petitioners opposed the application contending that respondents were not CRP No.511 of 2008 2 plaintiffs or parties to the suit and hence cannot seek restoration of the suit, and there is no reason to condone the delay or to restore the suit to file. Similarly, respondents challenged the ex parte decree granted in favour of the petitioners by a regular appeal. That appeal was allowed and suit filed by the petitioners was remanded to the trial court. The learned Munsiff as per common order, dated 27.2.2008, allowed the petitions on payment of cost. This petition is filed challenging the order. 2. The argument of the learned counsel appearing for the petitioners is that though an appeal was filed by the respondents against the order dismissing the suit for default, that appeal was dismissed as not maintainable and appellate court did not observe that a petition under Order IX Rule 9 of Code of Civil Procedure is to be allowed, and so Munsiff is not justified in allowing the applications. It was argued that respondents, who were not parties to the suit, are not entitled to apply for restoration of the suit, and for that sole reason applications should have been dismissed. The learned counsel vehemently argued that if at all plaintiff alone can apply under Order IX Rule 9 of Code of Civil Procedure, and when the plaintiff in O.S.No.736/1999 is alive, respondents are not entitled to file an application for restoration, especially, when suit is only for injunction CRP No.511 of 2008 3 and they are at liberty to file a fresh suit. 3. On hearing the learned counsel, I do not find any illegality or irregularity warranting interference in the impugned order. By the impugned order, learned Munsiff has only permitted the respondents, who obtained the entire rights of the original plaintiff, subsequent to the institution of the suit by transfer, to get a decree on merits. Admitted facts show that as against the very same plaintiff, petitioners instituted another suit, and though that suit was decreed ex parte, respondents challenged the decree based on the right obtained from the plaintiff herein, and Appellate court was pleased to set aside the ex parte decree, so that a decree could be obtained by the petitioners in the presence of the respondents. In such circumstances, I do not find just and proper to interfere with the impugned order, especially when by that order, learned Munsiff has only granted an opportunity to the respondents who obtained the right of the original plaintiff to have a decision on merits. Petitioners are entitled to raise all their contentions in the suit. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE nj.