IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 5TH SEPTEMBER 2011 / 14TH BHADRA 1933 OP(C).No. 2919 of 2011(O) ------------------------- AGAINST THE ORDER IN IA.5341/10 IN OS.200/2010 of ADDL.MUNSIFF COURT, KOLLAM .................... PETITIONERS/PETITIONERS/PLAINTIFFS ------------------------------------------------------------ 1. SASIKUMAR, AGED 58 YEARS S/O.DAMODARAN, AMBADI, KOLLAM 2. SURENDRAN, AGED 58 YEARS K.S.BHAVAN, PRAKKULAM, KOLLAM. BY ADVS. SRI.K.S.MANU (PUNUKKONNOOR) SRI.P.SREEKUMAR RESPONDENTS/COUNTER PETITIONERS/DEFENDANTS: -------------------------------------------------------------------------------- 1. DISTRICT COLLECTOR, KOLLAM . 2. DIRECTOR OF TOURISM DEPARTMENT PARK AVENUE, THIRUVANANTHAPURAM NEAR MUSEUM 695171. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 2919 of 2011(O) -------------------------------------- APPENDIX --------------- PETITIONER'S EXHIBITS ------------------------------------- EXT.P1. COPY OF THE PLAINT EXT.P2. COPY OF THE ORDER IN IA NO.1327/10IN OS NO.200/10 IN OS NO.200/10 EXT.P3. COPY OF THE WRITTEN STATEMENT. EXT.P4. COPY OF THE COMMISSION REPORT. EXT.P5. COPY OF THE PROSECUTION PETITION. EXT.P6. COPY OF THE COMMISSION REPORT EXT.P7. COPY OF THE NOTICE EXT.P8. COPY OF THE ORDER IN IA NO.5285/10 IN OS. N.200/10 EXT.P9. COPY OF THE ORDER EXT.P10. COPY OF THE IA NO.5340/10 EXT.P10(A). COPY OF THE IA N.5341/10 EXT.P11. COPY OF THE ORDER IN IA NO.5340/10 AND IA NO.5341/10. RESPONDENT'S EXHIBITS : NIL -------------------------------------- / TRUE COPY / P.A. TO JUDGE VK THOMAS P.JOSEPH, J. ==================================== O.P(C) No.2919 of 2011 ==================================== Dated this the 05th day of September, 2011 J U D G M E N T Learned Government Pleader takes notice for respondents. 2. This Original Petition is in challenge of Ext.P11, order dismissing I.A. Nos.5340 and 5341 of 2011 in O.S. No.200 of 2010 of the court of learned Additional Munsiff, Kollam. That is a suit for prohibitory/mandatory injunction against the respondents. It appears that some proceeding for prosecution of the respondents was pending in the court of learned Munsiff. Case was posted for trial in the list on 19.11.2010. That day, counsel for petitioners was present but claimed that he is filing an application to adjourn the case. Case was taken up again but there was no such application before the learned Munsiff. Thereon learned Munsiff observed that petitioners are not ready to adduce evidence and accordingly dismissed the suit. That was followed by petitioners filing I.A. Nos.5340 and 5341 of 2011 for review and keep the dismissal of the suit in abeyance. Those applications were dismissed as per Ext.P11, order. 3. Assuming that petitioners and counsel were present O.P(C) No.2919 of 2011 -: 2 :- before the learned Munsiff when the case was called on 19.11.2010, it is not disputed that they were not ready to proceed with the trial of the case whatever be the reason thereof. The mere physical presence of a party or counsel without preparedness to co-operate with trial is not “presence” in the eye of law (See Divakara Panicker v. Pathumma & Others - 1990 (1) KLJ 787). Therefore Ext.P9, order can only be treated as one dismissing the suit for default. Remedy of petitioners was not by way of a review but to apply for restoration of the suit. Having regard to the circumstances stated, it is made clear that notwithstanding Ext.P11 order, it is open to the petitioners to file application for restoration of the suit treating it as one dismissed for default on showing sufficient cause, if any. If any such application is preferred, learned Munsiff shall decide such application on its merits and pass appropriate orders as provided under law after hearing both sides. Original Petition is dismissed with the above observation. THOMAS P. JOSEPH, JUDGE. vsv