IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 4TH AUGUST 2009 / 13TH SRAVANA 1931 WP(C).No. 31424 of 2008(N) -------------------------- OS.141/2002 of MUNSIFF MAGISTRATE COURT, PARAVOOR .................... PETITIONER(S): ------------------------ STELLA , AGED 63 YEARS,D/O. MARIYA GLORY, CHARUVILA VEEDU, KALAKKODU CHERRY, KALAKKODU P.O., POOTHAKULAM VILLAGE, KOLLAM DISTRICT. BY ADVS. MR.V.VENUGOPALAN NAIR, MR.C.UNNIKRISHNAN (KOLLAM). RESPONDENT(S): --------------------------- 1. MURALEEDHARAN ASAN, S/O KESAVA PILLAI, SAHIL VILLA, KALAKKODU CHERRY, KALAKKODU P.O., POOTHAKULAM VILLAGE, KOLLAM DISTRICT. 2. SEEMA MURALI, SAHIL VILLA, KALAKKODU CHERRY, KALAKKODU P.O. POOTHAKULAM VILLAGE, KOLLAM DISTRICT. 3. SASIDHARAN PILLAI, ELAMPAZHIKATHU KARIYILAYIL VEEDU , KALAKKODU CHERRY, KALAKKODU PO., POOTHAKULAM VILLAGE, KOLLAM DISTRICT. 4. PUSHPALATHA, ELAMPAZHIKATHU KARIYILAYIL VEEDU , KALAKKODU CHERRY, KALAKKODU PO., POOTHAKULAM VILLAGE, KOLLAM DISTRICT. 5. MADHAVAN PILLAI, SARALA MANDIRAM, KALAKKODU CHERRY, KALAKKODU PO., POOTHAKULAM VILLAGE, KOLLAM DISTRICT. Kss ..2/- ...2...... WPC.NO.31424/2008 N 6. VIJAYALAKSHMI AMMA, SARALA MANDIRAM, KALAKKODU CHERRY, KALAKKODU PO., POOTHAKULAM VILLAGE, KOLLAM DISTRICT. 7. INDIRA BHAI AMMA, SARALA MANDIRAM, KALAKKODU CHERRY, KALAKKODU PO., POOTHAKULAM VILLAGE, KOLLAM DISTRICT. 8. DINESH, S/O. VASUDEVAN PILLAI, INDIRA BHAVAN, KALAKKODU CHERRY, KALAKKODU PO., POOTHAKULAM VILLAGE, KOLLAM DISTRICT. 9. VIJAYAKUMARI AMMA, VISHNU VIHAR, KURUMANDAL CHERRY, PARAVOOR VILLAGE, KOLLAM DISTRICT. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/08/2009 ALONG WITH WPC.NO.37607 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.31424/2008 N APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF I.A.NO.1142/2008 IN OS 141/2002 OF THE HON'BLE MUNSIFF MAGISTRATE COURT, S.PARAVOOR SEEING DIRECTION TO THE COMMISSIONER. P2: COPY OF I.A.NO.1143/08 IN OS 141/2002 OF THE HON'BLE MUNSIFF- MAGISTRATE COURT, S.PARAVOOR REQUESTING THE COURT BELOW TO REMOVE THE CASE FROM THE LIST. P3: COPY OF THE ORDER IN I.A.1142/2008 IN O.S.141/2002 OF THE HON'BLE MUNSIFF-MAGISTRATE COURT, S.PARAVOOR DTD. 7/10/2008. P4: COPY OF THE ORDER IN I.A.1143/2008 IN O.S.141/2002 OF THE HON'BLE MUNSIFF-MAGISTRATE COURT, S.PARAVOOR DTD. 7/10/208. P5: COPY OF PLAINT IN O.S.NO.141/02 PENDING BEFORE THE MUNSIFF-MAGISTRATE COURT, S.PARAVOOR. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).Nos.31424 & 37607 of 2008 --------------------------------- Dated this the 4th day of August, 2009 J U D G M E N T These two writ petitions are filed by the plaintiff in O.S.No.141 of 2002 on the file of the Munsiff-Magistrate Court, Paravoor, Kollam. The above suit was dismissed for default and the counter claim raised by the defendants in the suit was decreed. W.P.(C).No.31424/2008 is filed by the petitioner against the orders passed by the court in two petitions, one for removal of the case from the list and the other for determination of additional matters by the advocate commissioner. That writ petition no longer survives for consideration as the suit itself has been dismissed for default. As regards the other writ petition, W.P.(C)37607/2008, the relief claimed is to stay the operation of the decree granted by way of counter claim, till the application moved by the petitioner/plaintiff to restore the suit dismissed for default is considered and disposed by the court on merits. In that writ petition, an amendment application is filed seeking additional reliefs, since during the pendency of the writ petition, W.P.(C).Nos.31424 & 37607 of 2008 2 restoration application moved by the plaintiff/petitioner had been dismissed by the trial court. So much so, the reliefs claimed in the writ petition earlier have become infructuous. Now the only question to be considered is the merit of the amendment application. Learned counsel for the petitioner submitted that the petitioner is seeking stay of a portion of the decree passed in relation to the counter claim for a short period to enable the petitioner to prefer an appeal against dismissal of the restoration application and obtain stay from the appellate court. 2. Having regard to the submissions made and taking note of the facts and circumstances presented, I fail to understand how the appeal to be preferred against the dismissal of the restoration application or even the restoration of the suit will enable the petitioner to stay the operation of the decree passed in the counter claim. On dismissal of the suit for default, the counter claim was adjudicated and a decree was passed thereof. Merit of that decree can be challenged only by way of an appeal as provided by law. So much so, on the contextual facts presented, I find the limited relief claimed by the petitioner cannot be entertained. W.P.(C).Nos.31424 & 37607 of 2008 3 Both the writ petitions are dismissed. I make it clear that if any appeal is preferred by the petitioner against dismissal of the restoration application and also the decree passed in the counter claim, none of the observations made above in the judgment will have any bearing or reflection in the determination of the disputes arising in such appeals. S.S.SATHEESACHANDRAN, JUDGE. bkn/-