IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 20TH OCTOBER 2009 / 28TH ASWINA 1931 WP(C).No. 28596 of 2009(O) --------------------------------------- OS.NO.129/2006 OF PRINCIPAL SUB COURT,ATTINGAL. .................... PETITIONER: ------------------- SHEEJA V.S, SHAJI BHAVAN, KOPPAM, THOLIKKODE VILLAGE, NEDUMANGADU TALUK, THIRUVANANTHAPURAM DISTRICT. BY ADVS. MR.M.R.ANANDAKUTTAN, SMT.M.A.ZOHRA, MR.R.S.MADHU, MR.MAHESH ANANDAKUTTAN. RESPONDENTS: ------------------------ 1. KUNJU KRISHNAN, "GURUPRASADAM" CHERUKUNNAM DESOM, VARKALA VILLAGE. 2. SHERLI, D/O.SATHIYABHAMA (LATE) "GURUPRASADAM" CHERUKUNNAM DESOM, VARKALA . 3. SURESHLAL, "GURUPRASADAM" CHERUKUNNAM DESOM, VARKALA VILLAGE, NOW RESIDING AT SINGAPORE 08246, ST.45, THAMPINESS B/K 48-N. 4. SUPRABHA PLOSS @ SUPRABHA, "GURUPRASADAM" CHERUKUNNAM DESOM, VARKALA, NOW RESIDING AT T.832, SPARROW GATE, AVENUE,LAS VAGAS, NEVADA 89131, USA. 5. SUPRABHA THOMASAK @ SUDHA, "GURUPRASADAM" CHERUKUNNAM DESOM, VARKALA VILLAGE NOW RESIDING AT HOG VOLLIEN-26 OTTESTAD 2312, SEANGE, NORWAY. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/10/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.28596 OF 2009 -------------------------- Dated this the 20th day of October 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) To issue a writ of certiorari or any other writ order or direction to call for the records leading to Ext.P4 order and to quash the same and direct the court to allow the restoration petition vide I.A No.1664/2008. ii) To issue a writ of certiorari or any other writ order or direction to the Hon'ble Sub Court, Attingal to review the dismissal of the restoration petition and give the petitioner a chance to conduct her case on merits. Iii) To pass such other orders as deemed fit and appropriate to be granted by this Hon'ble Court in the circumstances of the case. W.P.(C).No.28596 OF 2009 Page numbers 2. Suit filed by the petitioner/plaintiff as O.S No.129 of 2006 on the file of the Sub Court, Attingal seeking a decree of money towards the refund of advance paid under an agreement of sale was dismissed for default, for the reason, steps were not taken. Steps had been taken but without noticing the steps taken, suit happened to be dismissed for default is the case of the petitioner. A review petition was filed for setting aside the order dismissing the suit for default. That review petition also happened to be dismissed for the reason that there was no representation when it was taken up for consideration by the court. Yet again another petition was filed to restore the review petition. The court below after hearing the counsel, without notice to the opposite party, dismissed that application vide Ext.P4 order. Propriety and correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. W.P.(C).No.28596 OF 2009 Page numbers 3. Notice was ordered to the respondents. Though respondents have been served, none of them has entered appearance. I heard the learned counsel for the petitioner. The learned Sub Judge dismissed the application moved by the petitioner to restore the review petition in a one line order “Heard, dismissed on (as) devoid of merit”. Prima facie, the order so passed is not proper and correct. Primary question involved in the proceeding was whether the petitioner/plaintiff had taken steps and despite noticing the steps being taken, the court had dismissed the suit for default. If that be so, it is not a default of the party, but that of the court. If so, even without an application from the party, when such mistake is brought to the notice of the court, the suit is liable to be restored. Without adverting to the case canvassed by the petitioner, it seems, the court below has proceeded with the review petition, and on dismissal of that petition, the subsequent petition moved by the petitioner/plaintiff. Setting aside Ext.P4 order, W.P.(C).No.28596 OF 2009 Page numbers I direct the court below to examine the records and if it is satisfied that petitioner/plaintiff had taken steps in time, pass appropriate orders for restoration of the suit. In case, the court is not satisfied that the defects have not been cured, still, I direct the court below to dispose Ext.P3 application on its merits after providing an opportunity to the petitioner/plaintiff in accordance with law. Subject to the above directions, the writ petition is disposed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv