IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 24TH FEBRUARY 2011 / 5TH PHALGUNA 1932 OP(C).No. 762 of 2011(O) ---------------------------------------- OS.85/2007 of SUB COURT, PALA .................... PETITIONER: STATE BANK OF INDIA, OVERSEAS BRANCH, INDIRA GANDHI ROAD, WILLINGDON ISLAND, KOCHI-682003, REP. BY CHIEF MANAGER SAMB. BY ADV. SRI.GEORGE THOMAS (MEVADA), SR. SRI.MANU GEORGE KURUVILLA SRI.SUSHEEL JOSEPH CYRIAC RESPONDENTS: 1. C.Y.A.RASHEED, AGED 53, S/O.LATE C.P.A.YUSUF, NEAR DESHABHIMANI, KALOOR, EDAPPALLY SOUTH VILLAGE, ELAMAKKARA KARA, KANAYANNUR TALUK, KOCHI-682017. 2. C.Y.A.RAMLA MOHAMMED, AGED 48, D/O.LATE C.P.A.YUSUF, T.C.9/306, NC-3, JAWAHAR NAGAR, SASTHAMANGALAM VILLAGE, MUNDAVANAM MURI, THIRUVANANTHAPURAM TALUK, PIN-695003. 3. C.Y.A.RAUF, AGED 42, S/O.LATE C.P.A.YUSUF, CPA YUSUF & SONS, P.B.NO.4, MUNDAKKAYAM, MUNDAKKAYAM VILLAGE, EDAKKUNNAM MURI, KANJIRAPPALLY TALUK, KOTTAYAM-686513. 4. C.Y.A.RAJINA BEEVI, AGED 39, D/O.LATE CPA YUSUF, PRIYA DARSINI NAGAR, PLOT NO.98, PARAVATANI KARA, THRISSUR EAST P.O., PIN-680005. 5. ASMATTINA RASHEER, AGED 25, W/O.M.M.ASEEF, "MEHFIL" HOUSE, T.C.16/1722-1, ULLOOR LANE, DPI JUNCTION, THYCAUD MURI, THYCAUD VILLAGE, THIRUVANANTHAPURAM NORTH TALUK, THYCAUD P.O., THIRUVANANTHAPURAM-695014. 6. FATHIMA BEEBU RASHEED, AGED 22, W/O.ABDUL AZEEZ, PALIATHAZHATHU VEEDU, THRIKKAKARA KARA, VAZHAKKALA VILLAGE, KANAYANNUR TALUK, THRIKKAKARA P.O., KOCHI-682014. 7. FATHIMA NASMIN MOHAMMED, AGED 24, W/O.RIYAS KHADER, T.C.9/305 (1), NC-3, JAWAHAR NAGAR, SASTHAMANGALAM VILLAGE, MUNDAVANAM MURI, THIRUVANANTHAPURAM TALUK, KAWDIAR P.O., PIN-695003. 8. TARIQ MOHAMMED, AGED 22, S/O.MOHAMMED ABDULLA, T.C.9/305(1), NC-3, JAWAHAR NAGAR, SASTHAMANGALAM VILLAGE, MUNDAVANAM MURI, THIRUVANANTHAPURAM TALUK, KAWDIAR P.O., PIN-695003. 9. K.M.PHILIP, AGED 50, S/O.KARIMBIL MATHEW, THALLIMUKKAL KARA P.O., KOOTICKAL VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM-686514. 10. V.A.KUNJUMON, AGED 43, S/O.V.S.HASSAN, THALLIMUKKAL KARA P.O., KOOTICKAL VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM-686514. 11. C.D.MATHAI, AGED 66, S/O.DANIEL, THALLIMUKKAL KARA P.O., KOOTICKAL VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM-686514. 12. P.R.SABU, AGED 43, S/O.RAGHAVAN, POYILLAHU, THALLIMUKKAL KARA P.O., KOOTICKAL VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM-686514. 13. JAHEEL RAUF, AGED 36, W/O.C.Y.A.RAUF, PALARUTHU PUTHUKUDIYIL, ALUVA VILLAGE, ALUVA KARA P.O., ALUVA-683101. 14. A.M.AKBAR ALI, AGED 46, S/O.A.A.BADURUDEEN, PLOT NO.98, PRIYADARSHINI NAGAR, PARAVATHANI KARA, THRISSUR VILLAGE, THRISSUR EAST P.O., THRISSUR-680005. 15. M/S.ASAMA RUBBER PRODUCTS (P) LTD., 39-B, COCHIN SPECIAL ECONOMIC ZONE, KAKKANAD, THRIKKARA KARA, KAKKANAD VILLAGE, KANAYANNUR TALUK, KOCHI-682037. 16. C.Y.A.RAHIM, AGED 46, MANAGING DIRECTOR, M/S.ASAMA RUBBER PRODUCTS (P) LTD., H.NO.14, WARD NO.VII/115-N, NOEL HERITAGE, KIZHAKKEKARA ROAD, THRIKKAKARA KARA VAZHAKKALA VILLAGE, KANAYANNUR TALUK, KOCHI-692021. 17. NISHA RAHIM, AG3ED 30, W/O.C.Y.A.RAHIM, H.NO.14, WARD NO.VII/115-N,NOEL HERITAGE, KIZHAKKEKARA ROAD,THRIKKAKARA KARA VAZHAKKALA VILLAGE, KANAYANNUR TALUK, KOCHI-692021. 18. C.Y.A.RAZAK, AGED 44, "BISMI", POWER HOUSE ROAD, ALUVA KARA, ALUVA VILLAGE, ALUVA-683202. 19. SASIDHARAN NAIR, 'SREEPADAM' HOUSE, VAZHOOR KARA, CHANGAMASSERU TALUK, KOTTAYAM, DISTRICT, PIN-686504. 20. SARASAMMA, W/O.SASIDHARAN NAIR, "SREEPADAM" HOUSE, VAZHOOR KARA, CHANGANASSERY TALUK, KOTTAYAM DISTRICT, PIN-686 504. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 24/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. --------------------------------------- O.P.(C)No.762 of 2011 --------------------------------------- JUDGMENT O.S.No.85/2007, a suit for declaration that certain documents executed by the defendants are sham and nominal documents, not binding on the plaintiff Bank, was included in the special list by Sub Judge, Pala on 11.01.2011. Plaintiff filed Exhibit P1 application for removing the suit from the special list on the ground that Advocate Sri.A.V.George, appearing for the plaintiff, is laid up due to fracture. Exhibit P2 medical certificate was also produced. By Exhibit P3 order, the said application was dismissed for the reason that there are three senior Advocates appearing for the plaintiff. Exhibit P4 application was then filed for adjournment of the case by ten days to engage another senior counsel. By Exhibit P5 order, learned Sub Judge posted the case to 13.01.2011, granting adjournment on payment cost of Rs.500/- each to the contesting defendants. Six defendants were ex parte. So, there are fourteen contesting defendants. On 13.01.2011, by Exhibit P6 order, recording that plaintiff was absent and the Advocate appearing for the defendants submitted that cost was not paid, the suit was dismissed with cost to the contesting OPC 762/11 2 defendants. After dismissing the suit, by Exhibit P7 order, Exhibit P4 application was dismissed recording that counsel for the plaintiff is not present and the cost ordered was not paid and the suit is already dismissed. Exhibit P9 application filed under Section Order IX Rule 9 of Code of Civil Procedure is now pending before the trial court. This petition is filed by the plaintiff under Article 227 of Constitution of India to quash Exhibits P3, P5 and P7 orders. 2. Learned senior counsel submitted that when the senior counsel appearing for the plaintiff sought adjournment with a request to remove the suit from the special list on medical grounds, learned Sub Judge was not justified in dismissing the application and in the interest of justice, the case should have removed from the special list. Learned senior counsel also pointed out that when, after passing Exhibit P3 order, Exhibit P4 application was filed for granting adjournment to engage another senior counsel, learned Sub Judge should not have directed the plaintiff to pay cost to each of the contesting defendants, when the defendants were not present in court at all. It is submitted that in any case, dismissal of Exhibit P4 application, subsequent to the disposal of the suit without OPC 762/11 3 considering it on merits, is illegal. It is, therefore, submitted that Exhibits P3, P5 and P7 orders are to be quashed. 3. Learned senior counsel submitted that even though the suit now stands dismissed, an application to restore the suit is pending and if Exhibit P5 order is not quashed, learned Sub Judge may take a view that petitioner is not entitled to prosecute the suit further, including the restoration application, without payment of cost as directed in Exhibit P5 order and therefore, the illegal order is to be quashed. 4. The suit was dismissed for default on 13.01.2011. True Exhibit P9 application filed for restoration of the suit is now pending. As, when the suit stands dismissed, though the application for restoration of the suit is pending, it is not necessary for this Court to quash the orders in the interlocutory order. It warranted, petitioner is entitled to challenge the orders when the suit is restored. As a restoration application is pending, it is for the learned Sub Judge to consider Exhibit P9 application on merits. I find substance in the submission of the learned senior counsel that learned Sub Judge could have granted adjournment to enable the petitioner to engage a senior counsel, when the senior counsel appearing for the appellant had filed an OPC 762/11 4 application to remove the suit from the special list on the ground that he is laid up due to fracture and produced a medical certificate also in support of the illness. It is also true that after dismissal of the application to remove the suit from the special list, when an application for adjournment of the case by ten days was filed to enable the petitioner to engage another counsel to prosecute the suit further, learned Sub Judge should not have insisted for payment of cost and that too, when there was no necessity for all the defendants to be personally present on that day. But, considering the fact that suit now stands dismissed, I do not find it necessary to quash the impugned orders as sought for. If the apprehension of the petitioner is that learned Sub Judge may not entertain Exhibit P9 application or will not restore the suit without payment of cost as directed in Exhibit P5 order, it is made clear that learned Sub Judge shall not insist for payment of cost as ordered in Exhibit P5 order for considering Exhibit P9 application on merits and shall not treat it a condition precedent for prosecuting the suit further. Petition is disposed. 24th February, 2011 (M.Sasidharan Nambiar, Judge) tkv