IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 25TH AUGUST 2009 / 3RD BHADRA 1931 CRP.No. 1119 of 2001(D) ----------------------- AGAINST THE ORDER DATED 03/02/2001 IN IA. 4901 /2000 IN OS.40/1995 of III ADDL.SUB COURT, ERNAKULAM .................... PETITIONER(S): RESPONDENTS 2 & 3: ---------------------------------------------------------- 1. TONY D'ROZARIO, 37/2030 B, COLEON VILLA, PONOTTU ROAD, KALOOR, ERNAKULAM. 2. LALLU D'ROZARIO, W/O.TONY D'ROZARIO, 37/2030 B, COLEON VILLA, PONOTU ROAD, KALOOR, ERNAKULAM. BY ADV. MR.BIJU ABRAHAM RESPONDENT(S): -------------------------- 1. KUNJAMMA ANTONY, VELANKALAM, B M C (P.O.), THRIKAKKARA, KAKKANADU. *2. MRS. DINO D' ROZARIO, W/O.EARNEST D'ROZARIO (DECEASED) HOUSE NO.C/7, VOLTAS EMPLOYEES CO-OPERATIVE HOUSING SOCIETY LTD., SHIVARUSHTI, KURLA (EAST), MUMBAI – 400 024. ( D E L E T E D) *3. DOMINIC D'ROZARIO, S/O.EARNEST D'ROZARIO (DECEASED), HOUSE NO.C/7, VOLTAS EMPLOYEES CO-OPERATIVE HOUSING SOCIETY LTD., SHIVARUSHTI, KURLA (EAST), MUMBAI – 400 024.(D E L E T E D) Kss ..2/- ....2..... CR.P.NO.1119/2001 *4. MRS. MAGGIE FRANKEY RODRIGZ, S/O.EARNEST D'ROZARIO (DECEASED), HOUSE NO.C/7, VOLTAS EMPLOYEES CO-OPERATIVE HOUSING SOCIETY LTD., SHIVARUSHTI, KURLA (EAST), MUMBAI – 400 024.(D E LE T E D) *5. MRS.LYNTETTE DESTAR LUIZ, S/O.EARNEST D'ROZARIO (DECEASED) HOUSE NO.C/7, VOLTAS EMPLOYEES CO-OPERATIVE HOUSING SOCIETY LTD., SHIVARUSHTI, KURLA (EAST), MUMBAI – 400 024. ( D E L E T E D). (*R2 TO R5 DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONERS AS PER ORDER DTD. 19/08/2009 ON C.M.P.NO.5513/2001 IN C.R.P.NO.1119/01) R1 BY MR.CHACKO GEORGE, SENIOR ADVOCATE THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON C.M.P.NO.2638/2001 IN C.R.P.NO.1119/2001 DISMISSED 25/08/2009 SD/- S.S.SATHEESACHANDRAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ----------------------------- C.R.P.No.1119 OF 2001 -------------------------- Dated this the 25th day of August 2009 ------------------------------------- O R D E R The revision is directed against the order dated 03/02/2001 in I.A No. 4901 of 2000 in O.S No. 40 of 1995 on the file of the 3rd Additional Sub Court, Ernakulam. Second and third defendants in the above suit are the revision petitioners. Suit is one for specific performance. Suit was dismissed by the court below for the reason the plaintiff failed to take steps as against additional defendants 4 to 7, the legal representatives of the first defendant who passed away during the pendency of the suit. After such dismissal, plaintiff moved an application for restoring the suit stating that he had taken steps, but without noticing it, the suit was dismissed for C.R.P.No.1119 OF 2001 Page numbers default. The learned Sub Judge allowed the application moved by the plaintiffs under the impugned order. Propriety and correctness of that order is challenged in the revision by the petitioners / defendants 2 and 3 in the suit. 2. I heard the counsel on both sides. From the submissions made and having regard to the facts and circumstances presented, I find there is no impropriety or illegality in the order passed by the learned Sub Judge in restoring the suit to file. The plaintiffs have taken steps for service on additional defendants and without noticing it the court below passed an order dismissing the suit not only as against that defendant but as a whole. That was patentally erroneous. When this was brought to the notice of the court by the plaintiff by filing a petition the court below passed the impugned order directing the restoration of the C.R.P.No.1119 OF 2001 Page numbers suit. Dismissal of a suit for nontaking of steps as against the defendants falls under Order 9 Rule 4 of the Code of Civil Procedure and on that ground also, I find there is no impropriety in the order of the court setting aside the previous order and restoring the suit. Revision lacks merit, and it is dismissed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv