IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 8TH JULY 2009 / 17TH ASHADHA 1931 CRP.No. 98 of 2009() -------------------- CMA.130/2007 of DISTRICT COURT, PALAKKAD OS.205/2003 of MUNSIFF COURT, ALATHUR .................... REVISION PETITIONER(S): RESPONDENT NO.2/DEFENDANT NO.2: -------------------------------------------------------------------------------------------------- ARAVINDAKSHAN ,S/O.KRISHNANKUTTY, AGED 63 YEARS, PRESENT ADDRESS:PARUVAYIL HOUSE, AYAKKAD PO,PALAKKAD. BY ADV. MR.JACOB SEBASTIAN RESPONDENT(S): --------------------------- 1. KALAVATHI, AGED 55 YEARS, W/O.LATE RAMACHANDRAN, RESIDING AT PERUVAYIL VEEDU, VARUKUNNIL, KANNAMBRA AMSOM,ALATHUR TALUK, PALAKKAD DISTRICT. 2. PRADEESH, AGED 39 YEARS, S/O. LATE RAMACHANDRAN,DO..DO... 3. BAIJU @ SATHEESH, AGED 34 YEARS S/O. LATE RAMACHANDRAN ,DO..DO... 4. K.SUSEELA, AGED 63 YEARS, W/O.T.V.SUKUMARAN, RESIDING AT THAZHATHE VEEDU, MANNUR, KIZHAKKUMBRAM, PALAKKAD TALUK. 5. KALLIANIKUTTY, AGED 59 YEARS, W/O.SARVESWARAN, EANARA HOUSE, PARAKKAL CHALLA, GOVINDAPURAM, MUTHALAMADA AMSOM, CHITTUR TALUK. 6. VALSALA, AGED 57 YEARS, W/O.KRISHNAN, KALLAMPETTAYI, VALLIKKAD AMSOM, PALAKKAD TALUK. 7. UDHAYAKUMAR, AGED 52 YEARS, S/O.KRISHNAN, PARUVAYIL, AYAKKAD, ALATHUR TALUK. 8. SASIKALA, AGED 49 YEARS, W/O.SRINIVASAN, RESIDING AT KINATTINGAL HOUSE, PANNIKKODE, KUNISSERY, ALATHUR TALUK. R1 TO R3 BY ADVS. MR.SAJAN VARGHEESE K. , MR.LIJU. M.P. R4 TO R8 BY ADV. MR.LEGY ABRAHAM THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss S.S. SATHEESACHANDRAN, J. ```````````````````````````````````````````````````` C.R.P. No. 98 OF 2009 ```````````````````````````````````````````````````` Dated this the 8th day of July, 2009 O R D E R The revision is directed against the judgment in CMA.130/07 by the learned District Judge, Palakkad. Defendant No.2 in O.S.No.205/03 on the file of the Munsiff Court, Alathur, later, transferred and pending on the file of the Sub Court, Palakkad, is the revision petitioner. The respondents are the plaintiffs and the other co-defendants in the suit. Suit was one for partition and on the day when the case was listed for trial the plaintiff was absent and hence it was dismissed by default. An application was moved by the plaintiff under Order 9 Rule 9 CPC to restore the suit with a petition to condone the delay of 566 days. The delay petition was dismissed, consequently the application for restoration was also turned down. Against the dismissal of those petitions, plaintiff preferred an appeal and the order impugned in that appeal directing the restoration of the suit after setting aside its dismissal is challenged in the revision. 2. I heard the counsel on both sides. It is submitted that CRP.98/09 : 2 : a suit filed by the present revision petitioner is pending as OS.No.l207/02 before the Sub Court, Palakkad. The above suit is now ordered to be tried jointly with the suit ordered to be restored by the order impugned in the revision. Perusing the judgment passed by the court below, it appears, the pendency of the suit filed by the present petitioner weighed with the court in forming a conclusion that the suit, which was dismissed for default, can also be restored as the parties are the same and there was also some identity with respect to the subject matter of the suit. The question whether the plaintiff had sufficient cause for condoning the delay which was found against by the trial court in the petition filed under Order 9 Rule 9 CPC was not seriously considered by the Appellate Judge. Other than stating that the appellants were prevented by sufficient cause for filing the application in time, the court has not stated the reason to take such a view. So much so, prima facie, it would appear that the view so taken is not supported by reason. However, taking note that the two suits are now ordered to be jointly tried, in my view, interests of justice would be met if the plaintiffs are directed to compensate the injury caused to the CRP.98/09 : 3 : present revision petitioner in restoring the suit prosecuted against him after its dismissal and long lapse of time, nearly two years. So much so, I direct the plaintiffs/respondents 1 to 3 in the present revision to pay cost of Rs.1,000/- to the revision petitioner/ 1st defendant. Cost is ordered as a condition precedent for restoration of the suit dismissed for default. Cost shall be paid to the counsel appearing for the revision petitioner before this court within 15 days and a memo filed evidencing such payment. In default of payment of cost within the time stipulated, the impugned judgment shall stand set aside with the result of confirming the dismissal of the petition filed under Order 9 Rule 9 CPC moved by the plaintiffs. The revision is disposed. Post after fifteen days for report. Sd/- (S.S. SATHEESACHANDRAN, JUDGE) aks // True Copy // P.A. to Judge