IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN FRIDAY, THE 18TH SEPTEMBER 2009 / 27TH BHADRA 1931 WP(C).No. 21687 of 2009(E) -------------------------- ( ORDER IN IA.49/07 IN LAR.18/2005 of SUB COURT, HOSDRUG) .................... PETITIONER(S): --------------- VAZHAVALAPPIL KRISHNAN, S/O. KANNAN (LATE), RESIDING AT KARIAMKODE, PEROLE VILLAGE P.O., CHATHAMATH, KASARAGOD DIST. BY ADV. SMT.P.K.PRIYA SRI.K.V.SREE VINAYAKAN RESPONDENT(S): --------------- THE SPECIAL TAHSILDAR (L.A.), N.H., KANNUR. BY GOVT. PLEADER SRI.V.MANU. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN WPC.21687/09 PETITIONER'S EXHIBITS: EXT.P1: THE TRUE COPY OF THE ORDER DATED 30.5.07 IN I.A.49/07 IN LAR 18/05. EXT.P2: THE TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P(C).29139/07 DATED 3.10.07. /TRUE COPY/ THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.21687 OF 2009 ------------------------------------------- Dated this the 18th day of September, 2009 JUDGMENT 1.The petitioner is the first claimant in LAR.No.18/05, which was included in the special list before the court below on 14.12.2006 for trial. He was laid up due to CVA-Cardio- Vascular accident (stroke) and accordingly, he could not appear. The matter was adjourned to a date shortly thereafter. Ultimately, the LAR ended. Later, the petitioner filed I.A.49/07 seeking restoration of the LAR, invoking Order 9 Rule 9 and Section 151 C.P.C. After considering the evidence of the petitioner, that I.A. has been rejected by the court below. Hence, this writ petition under Article 226 of the Constitution of India. 2.I have perused the order that was passed by the court below on 15.12.2006. I did so because in the orders Ext.P1, the court below says that the court never dismissed the reference on WPC.21687/09 Page numbers that day but that the reference was answered against the claim on account of failure in adducing additional evidence. But, a perusal of the order issued on 15.12.2006 shows that it is nothing but a decision on default. The court records that in spite of adjournments, the claimant did not take steps to be examined, even through a Commissioner and ultimately states that for lack of additional evidence, the court answers the reference against the claimant. There is nothing in that order to show that the court below had applied its mind to the contents of the award of the Collector; the materials taken stock of by the Collector and the reason why the Collector confined the land value to a particular amount or confined the total compensation to the amount that was actually granted. Such consideration would have made the order dated 15.12.2006 one that would have amounted to an award on merits and not one on default. But the fact remains that it is one on default. With that, it is necessary to overrule the WPC.21687/09 Page numbers findings in Ext.P1 that the order dated 15.12.2006 was not one where the reference was closed on default. I do so. 3.With the aforesaid, the fact that the petitioner was seriously sick is not disputed. The evidence tendered by PW1, though not in the technical sense as understood in the law of evidence, corroborates the history of the litigation as is discernible even from Ext.P1 order. It was because the petitioner was sick that he did not tender evidence and his wife and he jointly applied for restoration. Under such circumstances, in terms of law, the petitioner and his wife had demonstrated that they had sufficient cause of being absent and tender evidence when the LAR was listed for trial and also on 15.12.2006, when the matter was decided on default. I am satisfied that Ext.P1 works injustice and deserves to be set aside in exercise of Article 227 of the Constitution of India. WPC.21687/09 Page numbers 4.It appears that even after Ext.P1, there is delay in filing this writ petition. Ext.P1 order is issued on 30.5.2007 while this writ petition is filed on 30.7.2009, i.e., after more than two years. Therefore, learned Government Pleader is right in saying that the delay of that two years is not directly attributable to the State while the said delay is not explained to the satisfaction. That is expected in judicial proceedings. He, therefore, rightly points out that there should be some slashing of the interest component that would accrue during the said period of two years and two months. 5.Taking into consideration all relevant facts into consideration, Ext.P1 is set aside and LAR.No.18/05 is remitted as restored to the files of the court of subordinate Judge, Hosdurg with a further direction that on conclusion of trial, if the claimants are found entitled to any amount by way of enhancement, the interest on such components would not run for a period of one and half years. It is also directed that this judgment will form WPC.21687/09 Page numbers part of the LAA and LAR files. The Office will transmit a copy of this judgment to the court below. In the event of an award being passed, this order will be treated as merged in that award and it will form part of that award as regards the interest component. This writ petition is so ordered. No costs. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.29/9.