IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 3RD DECEMBER 2008 / 12TH AGRAHAYANA 1930 WP(C).No. 35692 of 2008(Y) -------------------------------------------- OS.109/2002 of MUNSIFF COURT, KALPETTA .................... PETITIONER: IBRAHIM, S/O.MOIDU, MANNATHUPONNOLI, VARAMBATTA P.O., PADINHARATHARA, VYTHIRI TALUK, WAYANAD DISTRICT. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENT: KAVUMKANDI AMMATHE, S/O.ABDULLA, THENGUM MUNDA, PADINJARETHARA AMSOM, PADINJARETHARA P.O., VYTHIRI TALUK, WAYANAD DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- W.P.(C)No.35692 of 2008 Y -------------------------- JUDGMENT The grievance of the petitioner, who submitted Exhibits P3 and P4 petitions in the court below in O.S. No.109/02 on 7.8.2008, which are respectively petitions under Order IX Rule 13 CPC and under Section 5 of the Limitation Act, is that the court has not taken to file those petitions stating that Part III documents in the case are destroyed. Counsel for the petitioner submits that whether the petitions are finally to be allowed or dismissed, the reason stated for return of the petitions is not justified and that the petitions are liable to be received and considered on merits. 2. I have perused the records submitted in this writ petition. It is seen from Exhibit P6 order passed by the court below on 17.10.2008, when the matter was placed before Bench in view of the defect noted by the Chief Ministerial Officer of that court, that the suit O.S.No.109/02 stood posted for trial in the special list on 2.11.2002 and when the case was taken up for WPC 35692/08 2 trial, counsel for the petitioner, who was the defendant in the suit, reported “no instructions” vide memo dated 2.11.2002 and as such, the counsel, who filed Exhibits P3 and P4 petitions, being the same counsel, do not hold the vakalath of the petitioner any further and that the petitions having been filed without a fresh vakalath, could not be received. Though the reason noted by the Office for returning the petitions is not justified, the reason stated by the court to the above effect deserves to be upheld. Counsel for the petitioner submits that the petitioner is prepared to re-present Exhibits P3 and P4 petitions with fresh vakalath executed in the name of his counsel. If Exhibits P3 and P4 petitions are filed with fresh vakalath so executed, the learned Munsiff shall receive the same on file and pass appropriate orders thereon. With this direction, this writ petition is disposed of. 3rd December, 2008 (K.P.Balachandran, Judge) tkv