IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 4TH JULY 2008 / 13TH ASHADHA 1930 WP(C).No. 20240 of 2008(H) ----------------------------------------- PETITIONER: ------------------- K.J.JOSEPH, AGED 53, S/O.LATE OUSEPH @ JOSEPH, KADAMPARAMBIL, MOOLAMPILLY, KADAMAKKUDY, ERNAKULAM DISTRICT. BY ADV. SRI.VARGHESE C.KURIAKOSE RESPONDENTS: ------------------------ 1. PIOUS @ PIYUS, S/O. LATE OUSEPH @ JOSEPH, KADAMPARAMBIL, MOOLAMPILLY, KADAMAKKUDY, ERNAKULAM DISTRICT. 2. SHINY,W/O. PIOUS @ PIYUS, KADAMPARAMBIL, MOOLAMPILLY, KADAMAKKUDY, ERNAKULAM DISTRICT. 3. MANUEL, S/O.THOMAS, KODUVELIPARAMBIL, PERUMANNUR, KOCHI – 27. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR, J. ........................................... WP(C).No. 20240 OF 2008 ............................................ DATED THIS THE 4th DAY OF JULY, 2008 JUDGMENT Petitioner is the second defendant in O.S.591 of 2007 on the file of Additional Sub Court, Ernakulam. This petition is filed under Article 227 of Constitution of India, for a direction to Sub Court to grant an adjournment of two months before including the suit in the special list. The case of petitioner is that under Ext.P4 petition, adjournment was sought, but it was not granted and the suit now stands posted to tomorrow. 2, Learned counsel appearing for petitioner submitted that as stated in the affidavit of Ext.P4 petition, suit was originally filed before Munsiff Court, Ernakulam and was returned for presentation before Sub Court, Ernakulam with a direction to the parties to appear on 18.7.2007 and on 18.7.2007, plaint was not presented and petitioner was not served with any summons and he was unaware of the presentation of the plaint before Sub Court, Ernakulam and finding the name of the counsel, his Clerk enquired about the matter and found out that suit is included in the special list on 1.7.2008 and therefore petitioner filed Ext. P4 petition for removing the suit for a period WP(C) 20240/2008 2 beyond two months and learned Sub Judge did not grant the said adjournment sought for and instead, posted it to 5.7.2008. If the case is as submitted by the petitioner that plaint was not represented before Sub Court, Ernakulam on the date on which parties were directed to be present before that court by the learned Munsiff, and subsequently if no summons was issued on the petitioner, learned Sub Judge should have granted time as sought for. 3. In such circumstances, this writ petition is disposed, directing learned Sub Judge to remove the suit from the special list, and not to include in the special list for two months if the plaint was not represented on the date as directed and plaint was subsequently represented and no summons was issued to second defendant from sub court and second defendant did not appear in O.S.591 of 2007. If the plaint was presented on the proper date or summons was served on the second defendant or if second defendant appeared through a counsel before the Sub Court, learned Sub Judge is to proceed with the trial. M.SASIDHARAN NAMBIAR, JUDGE lgk/-