IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 19TH MARCH 2008 / 29TH PHALGUNA 1929 CRP.No. 235 of 2008() --------------------- CMA.4/2006 of SUB COURT, MANJERI I.A.NO.635/2006 IN OS.247/2002 of MUNSIFF COURT, MANJERI .................... REVN. PETITIONERS: APPELLANTS/PLAINTIFFS: ---------------------------------------- 1. P.T. HYDRU, S/O. P.T. MOHAMMED, VANIYAMBALAM AMSOM, PAZHEDAM DESOM,NILAMBUR TALUK. 2. ABDUL SALAM, S/O. MUSLIYARAKATH UMMERKUTTY BY POWER OF ATTORNEY HOLDER 1ST APPELLANT P.T.HYDRU. BY ADV. SRI.P.S.SREEDHARAN PILLAI SMT.C.G.PREETHA SMT.P.RANI DIOTHIMA RESPONDENTS: RESPONDENTS/DEFENDANTS: ------------------------------------ 1. AYISHA, AGED 52 YEARS, D/O. THANDUPARAKKAL KUNHAMUTTY. 2. MUMTHAS, AGED 50 YEARS, D/O. THANDUPARAKKAL KUNHAMUTTY. 3. MOHAMMEDKUTTY, AGED 48 YEARS, S/O. THANDUPARAKKAL KUNHAMUTTY. 4. MAJEED, AGED 46 YEARS, S/O. THANDUPARAKKAL KUNHAMUTTY. 5. UMMER, AGED 44 YEARS, S/O. THANDUPARAKKAL KUNHAMUTTY. 6. SHOUKATH, AGED 42 YEARS, S/O. THANDUPARAKKAL KUNHAMUTTY. 7. JAMEELA, AGED 38 YEARS, D/O. THANDUPARAKKAL KUNHAMUTTY. CRP 235/2008 2 8. HAFSATH, AGED 32 YEARS, D/O. THANDUPARAKKAL KUNHAMUTTY. 9. MUJEEB RAHMAN, AGED 30 YEARS, S/O. THANDUPARAKKAL KUNHAMUTTY. 10. MAMMATHUTTY, AGED 67 YEARS, W/O. THANDUPARAKKAL KUNHAMUTTY. ALL ARE RESIDING AT VANIYAMBALAM AMSOM, PAZAHEDAM DESOM, NILAMBUR TALUK. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N.KRISHNAN, J. ------------------------------------------- C.R.P.No.235 of 2008 ------------------------------------------- Dated this the 19th day of March, 2008 ORDER This writ petition is preferred against the order of the Subordinate Judge, Manjeri in C.M.A.No.4/06. The suit was dismissed for default on 1.2.2006. The plaintiffs moved an application within time for restoration of the suit. It was opposed by the other side. It was submitted that as the first plaintiff was laid up with low pressure, he was unable to attend the court on 1.2.2006. But it appears from the orders of the court below that he had admitted before the court below that he has collected the turmeric from the property on 1.2.2006 and there was a police complaint with respect to the suit. So, the court held that there are no grounds to restore the suit. 2. The learned counsel for the revision petitioners submit before me that it was only a slip of tongue and it should not have been taken as conclusive to hold against the revision petitioners. The suit is one for recovery of possession on the strength of title. Ordinarily plaintiff will not be negligent because it affects his case. CRP 235/08 2 3. I just feel that the dictum laid down in Sreedhara Kurup vs. Mickel (1968 KLT 599) has to be applied if really the circumstances want. This court held that : “It is largely a matter of wise discretion to be exercised by the Court bearing in mind the wholesome principle that the right of a party to be heard should be negatived only if there is gross negligence or gross carelessness and that if some steps have been taken and application for restoration has been made with some diligence and some evidence adduced making out a sufficient cause for absence, restoration should be ordered, minor misconduct or latches being corrected by the common curative of costs. The brooding spirit of natural justice must be in the background while ascertaining whether there is sufficient cause. A strict and narrow construction defeats the ends of justice which can be reached only after a fair fight between the disputants.” The learned counsel would submit that she will be able to furnish materials to satisfy the principles laid down in this decision and request for a chance. I feel it can be granted in the broad interest of justice and therefore, I set aside the orders passed by the court below and remit back the case to the trial CRP 235/08 3 court to consider I.A.No.635/06 in O.S.No.247/02 after permitting both sides equal opportunities to adduce evidence in support of their contentions. The court below shall fix a date of appearance for the defendants in the case after the revisions petitioners appear before that court on 11.4.2008. The writ petition is disposed of accordingly. M.N.KRISHNAN, JUDGE csl