IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 12TH JUNE 2008 / 22ND JYAISHTA 1930 WP(C).No. 7594 of 2008(D) ------------------------- PETITIONER: COUNTER PETITIONERS/DEFENDANTS -------------- 1. GOPINATHAN, KOTTETHARAYIL VEEDU, KOCHUMURI VADAKKU, PUTHUPPALLY. 2. SANJAYAN, S/O.GOPINATHAN, RESIDING AT DO. DO. BY ADV. SRI.ISHAK KUNJU RESPONDENTS: PETITIONER/PLAINTIFFS ---------------------------------- 1. GRACY, KOTTEVADAKKETHARAYIL, VADAKKU KOCHU MURI, PUTHUPPALLY. 2. JOSE, S/O.GRACY OF DO. DO. BY ADV. SRI.K.R.SUNIL FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) No.7594 of 2008 EXT.P1 TRUE COPY OF DECREE DATED 21.8.2004 IN O.S.33/01 MUNSIFF'S COURT, KAYAMKULAM. EXT.P2 TRUE COPY OF COMMON ORDER IN I.A.NO.585/2006 & O.S.33/01 M.C. KAYAMKULAM DATED 7.11.2007 EXT.P3 TRUE COPY OF COMMON AFFIDAVIT DATED 11.12.07 WITH BOTH APPLICATIONS IN IA. 2762/07 & 2763/07 EXT.P4 TRUE COPY OF PROCEEDINGS DATED 2.1.08 WHICH IS WRITTEN AND ENDORSED BY THE COUNSEL APPEARING FOR THE DEFENDANTS. //TRUE COPY// P.A. TO JUDGE. M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.7594 of 2008 ------------------------------- Dated this the 12th June, 2008. J U D G M E N T This petition is filed by the defendants in O.S.No.33 of 2001 challenging the order passed by the Munsiff, Kayamkulam, restoring the suit, after receiving the cost, under Order IX of Rule 9 of Code of Civil Procedure. As per order, dated 7.11.2007, the petition to condone the delay as well as to restore the suit were allowed. The operative portion reads as follows:- “In the result I.A.585/06 and 586/06 are allowed on the condition that petitioners shall pay the cost of Rs.500/= each to the 1st counter petitioner for the above IAs within a period of 30 days. “ 2. Plaintiffs did not pay or deposit the cost within 30 days. They filed Ext.P3 petition before the court for extension of the period stating that though cost was paid, petitioners did not receive the same. Learned Munsiff allowed the application and permitted the plaintiffs to deposit that amount, and consequently allowed the application. It is challenged in this petition filed under Article 227 of W.P.(C) No.7594/2008 2 the Constitution of India. 3. The argument of the learned counsel appearing for the petitioners is that Ext.P2 is a self working order and learned Munsiff should not have extended the period fixed under Ext.P2 and that too, without notice to the petitioners. Learned counsel vehemently argued that after the expiry of the period, learned Munsiff without giving notice to the petitioners allowed the application and received the cost, and in such circumstances, the order is to be set aside. 4. The learned counsel appearing for the respondents pointed out that cost could not be paid as the counsel for the petitioners refused to receive the same, and respondents were compelled to file a petition to receive the cost and for extension of the period, and in such circumstances, there is no need to interfere with the order passed by the learned Munsiff. 5. On hearing the learned counsel appearing for both sides, I do not find any illegality or irregularity warranting interference in exercise of powers of this Court under Article 227 of the Constitution W.P.(C) No.7594/2008 3 of India. By Ext.P2 order, learned Munsiff granted an opportunity to the parties to have a decision on merit. That opportunity was granted to respondents only on terms. Ext.P2 order is not a self working order, as canvassed by the petitioners, because there is no direction in the order to the effect that on the failure of respondents to pay cost as directed, the petition will stand dismissed. The order does not provide for dismissal of the application and without a specific order to that effect independently, petition could not have been dismissed, and, therefore, it cannot be a self working order. What was done by the Munsiff was only that, cost which was not paid within 30 days received it, on the application filed by the respondents, submitting that counsel appearing for the petitioners refused to receive the cost. At best, grievance could only be that cost was received out of time without giving an opportunity to the petitioners to oppose the same. Even if an opportunity is granted, interest of justice, warrants that cost is to be received and order granted under Ext.P2 is to be sustained. In such circumstances, petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE nj.