IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 3RD NOVEMBER 2010 / 12TH KARTHIKA 1932 FAO.No. 353 of 2010() ------------------- AS.262/2007 OF DISTRICT COURT, KOLLAM OS.269/2003 OF PRINCIPAL MUNSIFF'S COURT, KOLLAM ................ APPELLANT / 1ST RESPONDENT / PLAINTIFF : ------------------------------------------------------------------ PADMA RAJENDRAN, W/O. RAJENDRAN, AGED 49, KADICHAZHIKATHU VEEDU, SHAKTIKULANGARA VILLAGE, KOLLAM. BY ADVS. SRI.R.KISHORE SRI.G.HARIPRASAD SRI.ARUN BABU RESPONDENTS / APPELLANTS / 2ND RESPONDENT / DEFENDANTS : -------------------------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, KOLLAM-691 001. 2. TAHASILDAR, REVENUE RECOVERY, TALUK OFFICE, KOLLAM-691 013. 3. THE VILLAGE OFFICER, SAKTHIKULANGARA VILLAGE, KOLLAM-691 013. 4. THE MANAGING DIRECTOR, KOLLAM DISTRICT MINI INDUSTRIES ESTATE CO-OPERATIVE LTD, NO.SND(Q)127, PIN-691 013. BY THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 03/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn ...2/- FAO.No. 353 of 2010() -2- ORDER ON I.A. NO. 4031/2010 IN FAO. NO. 353/2010 DISMISSED 03/11/2010 SD/- HARUN-UL-RASHID, JUDGE //TRUE COPY// P.S. TO JUDGE Mn HARUN-UL-RASHID,J. ------------------------------- F.A. O.NO.353 OF 2009 ------------------------------- DATED THIS THE 3RD DAY OF NOVEMBER, 2010 JUDGMENT Plaintiff in O.S.No.269/2003 on the file of the Principal Musiff's Court, Kollam is the appellant. The appeal is directed against the remand order passed by the District Court, Kollam in A.S.No.262/2007. The plaintiff filed the suit for declaration and injunction. There are four defendants in the suit. The lst defendant called absent and set ex parte. Though defendants 2 to 4 appeared in court, they did not file written statement in time. The trial court proceeded to hear and determine the case ex parte. On the basis of the proof affidavit and the supporting documents marked, the court passed a decree of permanent prohibitory injunction restraining defendants 2 to 4 from carrying out any revenue recovery proceedings as prayed for. The other prayer in the suit, namely the prayer for declaration, is disallowed for want of sufficient materials. -2- F.A.O..No.353/2010 2. Defendants 2 to 4 preferred A.S.No.262/2007 challenging the ex parte judgment and decree passed in the suit. Defendants 2 to 4 are the State of Kerala and its officers. Defendants 1, 3 and 4 entered appearance on 28/5/2003. The 2nd defendant was set ex parte and the case was adjourned to 7/8/2003. On 7/8/2003 the defendants 3 and 4, who are the appellants 2 and 3 in the appeal did not file any written statement. The trial court set these defendants ex parte and the case was adjourned to 30/8/2003 for evidence of the plaintiff. On 30/8/2003 the ex parte decree and judgment were passed by the trial court. The Lower Appellate Court considered the grievance of the appellants/defendants 2 to 4 and observed that the mere reason that no written statement was filed, the court below ought not have set the defendants 2 to 4 ex parte and ought not have proceeded with the case. The court also observed that there was unnecessary haste on the part of the trial court and ought to have afforded an opportunity to defendants 2 to 4 to state their case. Since defendants 2 to 4 could not file written -3- F.A.O..No.353/2010 statement in time and since the matter was decided ex parte, the Lower Appellate Court took the view that an opportunity shall be given to defendants 2 to 4 to contest the case on merits. In the said circumstances, the Lower Appellate Court set aside the decree and judgment passed by the trial court. The Appellate Court directed the trial court to afford opportunity to the defendants 2 to 4 to file written statement and to dispose of the case on merits after taking evidence. The order of remand passed by the Appellate Court in A.S.No.262/07 is challenged in this appeal by the plaintiff in the suit. 3. I have stated in detail the reasons stated by the Appellate Court for interfering with the ex parte decree and judgment passed by the trial court. The Lower Appellate Court has extended an opportunity to defendants 2 to 4 to file written statement and contest the case on merits. I do not find any reason to interfere with the order impugned in this appeal. In the circumstances, the appeal preferred against the -4- F.A.O..No.353/2010 remand order is without any merit. Accordingly, the appeal fails and is dismissed in limine. HARUN-UL-RASHID, Judge. kcv.