IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 14TH DECEMBER 2010 / 23RD AGRAHAYANA 1932 OP(C).No. 1138 of 2010(O) ------------------------- AGAINST THE ORDER DATED 20/08/2010 IN IA 3172/2009 IN OS.492/2004 of MUNSIFF COURT, KOTTARAKKARA .................... PETITIONER (S): -------------------- C.VIJAYAMOHANAN NAIR, VEESUPALATHUNDIL VEEDU, PADINJATTINKARA MURI, KOTTARAKKARA VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT. BY ADV. SMT.P.S.PREETHA RESPONDENT(S): --------------- 1. KOTTARAKKARA GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, KOLLAM, KOTTARAKKARA P.O., PIN-691506. 2. RADHAKRISHNAN NAIR, MANGALATHU VEEDU, PADINJATTINKARA MURI, KOTTARAKKARA P.O. & VILLAGE, KOLLAM DISTRICT, PIN-691506. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 14/12/2010, ALONG WITH OP(C) NOS.1142/2010 AND 1149/2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) Nos.1138, 1142 and 1149 of 2010 -------------------------------------- Dated this the 14th day of December, 2010. JUDGMENT Petitioner filed three suits – O.S. Nos.131 of 2001, 81 of 2003 and 492 of 2004 against the respondents herein. Common case is that respondent No.2 onwards, reclaiming their paddy land into garden land constructed buildings therein encroaching into plaint A schedule which according to the petitioner is a road vested with the Kottarakkara Grama Panchayat (respondent No.1 in O.P. (C) Nos.1138 of 2010 and 1149 of 2010). In the suits, petitioner prayed for various reliefs including a decree for prohibitory injunction against the local authority issuing building permits to the land owners concerned and for a direction to them to remove the building constructed in violation of the Building Rules and encroaching into the Panchayat road. It is the case of petitioner that the local authority remained ex parte in all the suits and at the time of trial some of the other defendants also remained absent and did not cross-examine the petitioner (examined as PW1). There was only the evidence let in by petitioner. But, learned Munsiff declined to grant relief to the petitioner even as against ex parte defendants and dismissed the suits. Alleging that there was error apparent on the face of record, petitioner filed applications for review (I.A.No.3172 of 2009, 3173 of 2009 and 3170 of 2009 respectively in these petitions) of the judgment. Those applications were dismissed by the learned Munsiff observing that there is no error apparent on the face of record or other sufficient reason OP(C) Nos.1138,1142 & 1149/2010 2 justifying review. Those orders are under challenge. Learned counsel has asserted the arguments raised in the review petitions and contended that court below did not consider the question whether the road is vested in the local authority. According to the learned counsel finding of learned Munsiff that the road was not taken up by the local authority is against the evidence on record. 2. Exhibit P2 in O.P.(C) No.1149 of 2010 is the common judgment. It is seen that learned Munsiff has considered the case on merit and found for the reasons stated in the common judgment that petitioner is not entitled to the reliefs prayed in the suits. That any of the respondents remained absent is not by itself a reason to pass a decree against them. The law applicable is Rule 11 of Order IX of the Code of Civil Procedure (for short, “the Code”). Under that provision even if some of the defendants do not appear the suit is to be proceeded and the court has to pass appropriate orders concerning the ex parte defendants at the time of disposal of the suit. It is also not as if the court is bound to pass a decree when the defendants are ex parte, in favour of the plaintiff. Rule 6 of Order IX of the Code says that the court may proceed against the defendants ex parte. If the court below passed a considered judgment and if the judgment is not correct remedy is to prefer appeal as provided under law. That is because a review petition is a not a substitute for an appeal nor is an opportunity to re-hear the suit. Learned Munsiff observed that there is no error apparent on the face of record or other sufficient reason justifying review of OP(C) Nos.1138,1142 & 1149/2010 3 common judgment. Having gone through the common judgment (Ext.P2 in O.P. (C) No.1149 of 2010), order on the applications for review and on hearing learned counsel I do not find any infirmity in the impugned orders. Resultantly these petitions are dismissed without prejudice to the right of petitioner to challenge the common judgment and decree as provided under law. THOMAS P.JOSEPH, Judge. cks