IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 8TH JULY 2011 / 17TH ASHADHA 1933 OP(C).No. 2146 of 2011(O) -------------------------------- AGAINST THE ORDER DATED 29/01/2011 IN IA 10039/2010 IN OS.113/2007 of PRL. MUNSIFF COURT, TRIVANDRUM .................... PETITIONER -------------- S. PRIYADARSHINI @ PRIYA V. NAIR, W/O. LATE VIKARAMAN NAIR, AGED 41 YEARS, RESIDING AT PUTHENVEETTIL KIZHAKKATHIL, NJNEKKANAL.P.O., KRISHNAPURAM, ALAPPUZHA DISTRICT. BY ADVS. SRI.T.MADHU SRI.B.K.RAJAGOPAL RESPONDENT(S): -------------------- 1. M.P. SAKUNTHALA, AGED ABOUT 35 YEARS, MUPPATHIMOONNIL CHIRA HOUSE, CHENNANKARAY (EAST) EDATHUVA.P.O., ALAPPUZHA DISTRICT. NOW RESIDING AT QUARTER NO. Q9, SRE NIVAS, PURI, NEW DELHI - 110 065. 2. THE KUDAPPANAKUNNU GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, KUDAPPANAKUNNU.P.O., THIRUVANANTHAPURAM - 695 043. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 08/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs O.P.(C). NO. 2146/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S.NO.113/2007 ON THE FILE OF THE HON'BLE PRINCIPAL MUNSIFF'S COURT, THIRUVANANTHAPURAM. P2: COPY OF THE PETITION IN I.A.NO.10039/2010 ON THE FILE OF THE PRINCIPAL MUNSIFF'S COURT, THIRUVANANTHAPURAM. P3: COPY OF THE ORDER DATED 29/01/2011 IN I.A. NO.10039/2010 IN O.S. NO.113/2007 ON THE FILE OF THE PRINCIPAL MUNSIFF'S COURT, THIRUVANANTHAPURAM. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.2146 of 2011 --------------------------------------- Dated this 08th day of July, 2011 JUDGMENT Petitioner is the plaintiff in O.S.No.113 of 2007 of the Court of learned Principal Munsiff, Thiruvananthapuram. That is a suit for prohibitory injunction against trespass, commission of waste and other reliefs. According to the petitioner/plaintiff, the suit property stands in the name of herself and her late husband, Vikraman Nair who is working as a Constable in Delhi. He died on 19.10.1999. The first respondent claimed to be the wife of said Vikraman Nair entitled to inherit his property, tried to alienate the suit property and trespass into it. Hence the suit. Petitioner has pleaded a cause of action against second respondent/second defendant as well. It is seen that on several occasions summons was issued to the first respondent/first defendant who was staying in Delhi but the summons was returned unserved for one reason or the other. Several times the suit against first respondent was dismissed by the learned Munsiff but, restored on the request of petitioner. On the last occasion, on the failure of petitioner to take necessary steps to issue fresh summons to the first respondent, learned Munsiff refused to condone the O.P(C)..No.2146 of 2011 -: 2 :- alleged latches on the part of petitioner and dismissed the suit against first respondent. Petitioner filed I.A.No.10039 of 2010 for restoration of the suit. That application was dismissed by the learned Munsiff observing that since the suit is dismissed against first respondent under Rule 5(1) of Order IX of the Code of Civil Procedure (for short, "the Code”), question of restoration does not arise and the remedy available to the petitioner is to file a fresh suit against the first respondent if the cause of action is within the period of limitation. That order is under challenge. Learned counsel contends that though learned Munsiff has observed that dismissal of the suit is under Rule 5(1) of Order IX of the Code, actually the dismissal is under Rule 2 of the said Order and hence dismissal of the suit can be set aside on an application for restoration. It is also pointed out by learned counsel that on earlier occasions, latches of the petitioner was condoned by the learned Munsiff. 2. It is seen from the order under challenge that right from 2007 onwards every attempt was made to serve summons on the first respondent but, it failed for one reason or the other, according to the petitioner, since she was not able to trace out correct address of the first respondent. Whatever that be, it is not disputed that on several occasions summons was ordered and O.P(C)..No.2146 of 2011 -: 3 :- issued to the first respondent but returned unserved. The ultimate direction of learned Munsiff to take necessary steps in the matter was not complied and thereon the suit against first respondent was dismissed. In view of that, Rule 2 of Order IX of the Code has plainly no application. On the other hand as found by the learned Munsiff, Rule 5(1) of Order IX of the code applied as summons was ordered to the first respondent several times, it was returned unserved and there was failure on the part of first respondent to take necessary steps as contemplated in Rule 5(1) of Rule IX of the Code. If that be so, learned Munsiff is correct in concluding that application for restoration is not maintainable. The remedy available to the petitioner is to a file fresh suit if the cause of action is within the period of limitation. 3. Learned counsel submits that since the suit is for prohibitory injunction against trespass it is open to the petitioner to file a fresh suit in case of any fresh cause of action accruing to the petitioner. That is a matter which petitioner can agitate in appropriate proceeding. With the above observation this original petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-