IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 10TH APRIL, 2008 / 21ST CHAITHRA, 1930 FAO.No. 51 of 2008 (I.A.No.2107/2006 in OS.315/2001 of PRINCIPAL SUB COURT, PALAKKAD) .................... APPELLANT/PETITIONER/DEFENDANT: ----------------------------------------------- THE PALAKKAD MUNICIPALITY, REPREESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, PALAKKAD - 678 001. BY ADV. SRI.V.CHITAMBARESH (SR.) SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU RESPONDENT/RESPONDENT/PLAINTIFF: -------------------------------------------------- N.ABDUL MUTHALIF, S/O.M.A.NOOR MUHAMMED RAWTHER, RESIDING AT M.A.LANE, NEAR T.B.ROAD, KOPPAM AMSOM, PALAKKAD TALUK. BY ADV. SRI.RAJESH SIVARAMANKUTTY SMT.K.S.SHARMILA THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 10/04/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R.RAMAN & V.K.MOHANAN, JJ. --------------------------------------------- F.A.O.No. 51 of 2008 --------------------------------------------- Dated this the 10th day of April, 2008 J U D G M E N T Raman,J: This is an appeal filed against the order dismissing the application filed by the appellant under Order IX Rule 13 of the Code of Civil Procedure. The suit is for recovery of possession of the property or in the alternative, for grant of compensation of Rupees six lakhs. The plaintiff, after incurring the entire court fee for the plaint amount had instituted the suit. His case is that through his property, a road is built by the Municipality without proceeding to acquire the land under the Land Acquisition Act or without paying compensation. When the suit was listed for trial, the Municipality remains absent and did not adduce any evidence. The evidence of the plaintiff was recorded and decree was eventually passed. 2. It is true that the Municipality has filed a written statement denying the allegations contained in the plaint and even disputing the title of the plaintiff. But, FAO NO. 51 OF 2008 :-2-: they did not adduce any evidence. According to them, they filed an application on the appointed day seeking adjournment on the ground that the files relating to the case are misplaced by the Officer. Adjournment was not granted and they were declared as ex parte. 3. The sole question therefore, arises for consideration as to whether there is any justification for the Municipality not being present the court when the case is posted. If, as a matter of fact, the file is mis- placed, somebody should have been examined on the side of the Municipality. The person, who was the custodian of the file, ought to have given evidence in this regard. That apart, even on the petition filed under Order IX Rule 13, no evidence was adduced. In the circumstances, we consider that the application can be allowed only on terms. 4. In the result, the impugned order is set aside on condition that the appellant deposits an amount of Rs.1 lakh before the court below within two months. The said amount will be adjusted against the decree, if FAO NO. 51 OF 2008 :-3-: any, to be eventually passed. In case, it is ultimately dismissed, the amount deposited would be ordered to be withdrawn by the appellant. In case the deposit is not made, the appeal will stand dismissed. The appeal is disposed of as above. P.R.RAMAN, Judge V.K.MOHANAN, Judge MBS/ FAO NO. 51 OF 2008 :-4-: P.R.RAMAN & V.K.MOHANAN, JJ. -------------------------------------------- O.P.NO. OF 2001 ------------------------------------ J U D G M E N T DATED: -2007 FAO NO. 51 OF 2008 :-5-: