IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P. BHAVADASAN MONDAY, THE 25TH MAY 2009 / 4TH JYAISHTA 1931 FAO.No. 224 of 2003() --------------------- AGAINST THE ORDER DATED 31/07/2003 IN iA 1261/2002 IN OS.55/2000 of SUB COURT, PAYYANNUR APPELLANT/PETITIONER/PLAINTIFF ----------------------------------------- MADAI SREE VADUKUNNU SIVAKSHETHRAM, REPRESENTED BY ITS SECRETARY P.V.NARAYANAN, MADAI AMSOM, VENGARA DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT BY ADV. SRI.P.S.KRISHNA PILLAI SRI.H.VINOD RESPONDENTS: CR.PETITIONERS/DEFENDANTS ---------------------------------------- 1. THE EXECUTIVE OFFICER, CHIRAKKAL KOVILAKAM DEVASWOM, CHIRAKKAL P.O., KANNUR DISTRICT. 2. THE COMMISSIONER, H.R.AND C.E. (ADMN.) DEPARTMENT, KOZHIKODE. ADV. SMT.VIDHYA. A.C FOR R1 GOVERNMENT PLEADER SRI. R. LAKSHMINARAYAN THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 25/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. = = = = = = = = = = = = = = = = = = = = F.A.O. 224 OF 2003 = = = = = = = = = = = = = = = = DATED THIS, THE 25TH DAY OF MAY, 2009. J U D G M E N T Bhavadasan, J. In this appeal, petitioner before the court below in I.A. 1261/2002 challenges the dismissal of his petition filed under Order 9 Rule 9 and Section 151 of the Code of Civil Procedure, seeking to restore the suit to file which was dismissed for default. 2. In the suit, the petitioner has sought for a declaration that the proceedings initiated by the defendants under Section 87 of the H.R. & C.E. Act against him on the basis of an application dated 19.9.1998 submitted by the first defendant is illegal, null and void and for a permanent injunction restraining the defendants from interfering with the management of Madai Sree Vadukunnu Siva Temple. The suit was listed for trial to 13.9.2002. It appears that there was an Interim Application for temporary injunction which was dismissed by the trial court . Petitioner challenged the same in appeal before the District Court . According to the petitioner, he had not taken the pre-trial steps under the bona fide impression that the records were called for by the District Court and therefore, he filed an application on F.A.O. 224/2003 :2: 13.9.2002 to which day the suit was listed for trial, praying to remove the case from the special list for trial. The trial court declined to grant the prayer and dismissed the suit for default. Immediately thereafter, petitioner/plaintiff sought for restoration of the suit by filing I.A.1261/2002. 3. It should be noticed that the petitioner had moved the application for adjournment on the date on which the case was posted for trial. It was not as though that he was not diligent in prosecuting the suit though immediately on the dismissal of the suit for default, he could have moved for restoration. However, in the interest of justice, we think the appellant/ petitioner should be given an opportunity to contest his case and any loss caused to the respondents herein should be compensated by awarding costs. In the result, the appeal is allowed on condition that a sum of Rs. 1,500/- (Rupees One thousand five hundred) is paid by the appellant to the respondents towards costs within one month from today, failing which the appeal shall stand dismissed. P.R. RAMAN, JUDGE. BHAVADASAN, JUDGE. KNC/- F.A.O. 224/2003 :3: An amount of Rs. 1,500/- (Rupees One thousand and five hundred) has been paid by the counsel for the Appellant as costs to the counsel for respondent No.1 within the stipulated time as ordered in the judgment dated 25.5.2009 in F.AO. 224/2003 vide memo c.f 3942/2009 dated 23.6.2009, recorded by order of Court dated 29.6.2009. sd/- Registrar (Judicial)