IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 13TH JUNE 2008 / 23RD JYAISHTA 1930 WP(C).No. 17783 of 2008(P) -------------------------- OS.193/2006 of MUNSIFF COURT,VARKALA .................... PETITIONERS:- ----------------------- 1. INDIRA AMMA, D/O. BHAVANI AMMA, REVATHY, PAKALKURI DESOM, PALLICKAL VILLAGE. 2. THULASEEDAHRAN UNNITHAN, S/O. KRISHNAN UNNITHAN, RAJESH BHAVAN, PAKALKURI DESOM, PALLICKAL VILLAGE. 3. SANTHAMMA, D/O.DEVAKI AMMA, RAJESH BHAVAN, PAKALKURI DESOM, PALLICKAL VILLAGE. BY ADV. SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN RESPONDENTS: - ------------------------ 1. VIJAYAN UNNITHAN, S/O. PONNAMMA, PERUMBAMCODE VEEDU AND VIJAYAVILASAM, PAKALKURI DESOM AND PALLICKAL VILLAGE. 2. SARALAMANI, W/O. VIJAYAN UNNITHAN, PERUMBAMCODE VEEDU AND VIJAYAVILASAM, PAKALKURI DESOM AND PALLICKAL VILLAGE. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NO.17783 OF 2008 =========================== Dated this the 13th day of June, 2008 JUDGMENT Petitioners are the plaintiffs in O.S.193 of 2006 on the file of Munsiff Court, Varkala. Defendants are the respondents. Suit was filed for declaration of right of way and for consequential injunction. Suit was originally included in the list. Plaintiffs filed I.A.1488/2007 an application under Order VI Rule 17 of Code of Civil Procedure to amend the plaint with regard to the measurements of the plaint D schedule way over which a right of way by easement of prescription was claimed. 2. Learned Munsiff under Ext.P3 order dismissed the petition on 25.9.2007 as follows:- “Heard both sides. IA is filed at a belated stage of trial with intention to protract that trial. W.P.(C)17783/2008 2 Hence IA dismissed.” Ext.P2 copy of the B Diary shows that on the same day as plaintiffs did not file proof affidavit recording that there is no evidence on the side of the plaintiff, suit was dismissed. Petitioners thereafter filed I.A.1638/2007 to restore the suit. Ext.P2 shows that it was restored on 29.11.2007. This petition is filed under Article 227 of the Constitution of India challeging Ext.P3 order. 3. Learned counsel appearing for petitioners pointed out that Ext.P2 B diary shows that even the trial court was under the impression that I.A.1488/2007 was dismissed for default and consequent to the restoration of the suit, the said application was also restored and that could only be the reason why the proceeding paper of the court subsequent to the restoration of the suit shows that amendment application is filed and it was posted for objection and thereafter enquiry. Learned counsel also pointed out that the proceeding paper of 6.2.2008 shows that W.P.(C)17783/2008 3 I.A.1488/2007 was already dismissed on 25.9.2007 though on that day's B diary it was not shown and then only petitioner was aware that the petition was dismissed. 4. Learned counsel argued that as Ext.P3 order was evidently passed without hearing the counsel and not on merits Ext.P3 order is to be quashed. If the case of the petitioner is that Ext.P3 order was passed without hearing the petitioner, remedy of the petitioner is to file a petition to review the order dated 25.9.2007. If apprehension of the petitioner is that at this distant point of time application for review cannot be filed, petitioner is entitled to file a petition under section 5 of the Limitation Act showing the reasons now raised before this court to condone the delay. If such an application is filed, learned Munsiff has to pass appropriate order in accordance with law considering the facts stated earlier. It is made clear that Ext.P3 order does not show that the application for amendment was considered on merit. W.P.(C)17783/2008 4 Writ Petition is disposed accordingly. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006