IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 19TH MARCH 2009 / 28TH PHALGUNA 1930 CRP.No. 797 of 2008() --------------------- CMA.22/2007 of ADDL.SUB COURT, IRINJALAKUDA IA 1494/06 IN OS.20/2002 of MUNSIFF COURT, KODUNGALLUR .................... REVN. PETITIONER(S): (APPELLANT - PLAINTIFF) -------------------------------------------- JAYALAKSHMI, AGED 53 YEARS, D/O.CHAKKUVAYAL KANAKAMMA, LOKAMALESWARAM VILLAGE, KODUNGALLUR TALUK. BY ADV. SRI.P.RAMAKRISHNAN RESPONDENT(S): (RESPONDENT-DEFENDANT) ------------------------------------- SUBHASHINI, AGED 45 YEARS, D/O.JARAJJAT JAYACHANDRAN, AND DAUGHTER OF ERAMPURAKKAL VELAYUDHAN, PADINJARE VEMBALLUR DESOM, SREENARAYANAPURAM VILLAGE, KODUNGALLUR TALUK. ADV. SRI.K.G.BALASUBRAMANIAN FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- C.R.P.No.797 of 2008 --------------------------------------------- Dated this the 19th day of March, 2009 ORDER The petitioner, who is the plaintiff in O.S.No.20 of 2002, Munsiff's Court, Kodungallur, was not present before court when the suit was posted in the list for trial. She says that she was admitted in the Hospital on the previous day. The suit was posted in the list on 13.9.2006. She has produced a medical certificate to show that she was admitted in the Hospital on 12.9.2006 due to hypertension, back pain and diabetes. On an earlier occasion, when the suit came up in the list in 2004, the same sequence of events happened. She was admitted in the Hospital when the suit was listed for trial and the suit was dismissed for default. It was restored to file. Thereafter, the suit was posted to 13.9.2006. 2. Since the plaintiff did not appear, the court below dismissed the suit for default. I.A.No.1494 of 2006 was filed by the plaintiff for restoration of the suit. The trial court dismissed that application. The plaintiff filed C.M.A.No.22 of 2007 challenging the order of the trial court. The appeal is also CRP No.797/2009 2 dismissed. The C.R.P. is filed against the order and judgment passed by the courts below. 3. The courts below dismissed the application for restoration mainly on the ground that the suit was dismissed on an earlier occasion due to the plaintiff's default and it was restored to file. It is not found by the courts below that the story put forward by the petitioner is false. There is also no finding that the plaintiff deliberately absented herself from court to protract the trial. However, the case put forward by the petitioner was not accepted by the court below probably because she was not very diligent in prosecuting her suit on an earlier occasion and in spite of restoration of the suit, she continued the same attitude in the matter of the conduct of the suit. 4. In the facts and circumstances of the case, I am of the view that the courts below could have allowed the application for restoration on terms. That the suit was dismissed on an earlier occasion and that it was restored is not a ground for dismissal of the subsequent application under Order IX Rule 9 of the Code of Civil Procedure. The Hon'ble Supreme Court has held that the past conduct of a litigant as such cannot be a ground for CRP No.797/2009 3 dismissal of an application under Order IX Rule 9 or Order IX Rule 13. In the facts and circumstances of the case, the Civil Revision Petition is allowed. The order and judgment passed by the courts below are set aside and I.A.No.1494 of 2006 is allowed on condition that the petitioner shall pay a sum of Rs.3,000/- as costs to the respondent-defendant on or before 7.4.2009. If the petitioner fails to pay the costs, the Civil Revision Petition shall be treated as dismissed. On payment of costs, the suit shall be restored to file and the trial court shall dispose of the suit expeditiously. The parties shall not be permitted to indulge in any dilatory tactics. K.T.SANKARAN, JUDGE csl