IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 18TH JULY 2011 / 27TH ASHADHA 1933 WP(C).NO. 24588 OF 2010(O) ------------------------------------------ I.A. NO.1475 OF 2009 IN OS.21/2007 OF SUB COURT, THIRUVALLA .................... PETITIONER(S): ----------------------- BABU XAVIYOR, AGED 46 YEARS, S/O.XAVIER, KUNNAMKULAM VEETTIL, THRIKODITHANAM VILLAGE, CHANGANACHERY TALUK. BY ADV. SRI.R.SANTHOSH BABU RESPONDENT(S): -------------------------- 1. KURIAN C.OOMMEN, AGED 31 YEARS, S/O.OOMMEN, CHIRAYIL VEETTIL, KUTTAPUZHA VILLAGE, THIRUVALLA TALUK. 2. ANNAMMA OOMMEN, AGED 28 YEARS, W/O.OOMMEN, CHIRAYIL VEETTIL, KUTTAPUZHA VILLAGE, THIRUVALLA TALUK. ADV. SRI.GEORGE MATHEW FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C) NO.24588 OF 2010 APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF PLAINT IN O.S. NO.21 OF 2007 OF SUB COURT, THIRUVALLA. EXHIBIT P2 TRUE COPY OF ORDER IN I.A. NO.951 OF 2009 IN O.S. NO.21 OF 2007 OF SUB COURT, THIRUVALLA. EXHIBIT P3 TRUE COPY OF ORDER IN I.A. NO.952 OF 2009 IN O.S. NO.21 OF 2007 OF SUB COURT, THIRUVALLA. EXHIBIT P4 TRUE COPY OF PETITION DATED 5.11.2009 IN I.A. NO.1425 OF 2009 IN O.S. NO.21 OF 2007 OF SUB COURT, THIRUVALLA. EXHIBIT P5 TRUE COPY OF I.A. NO.1475 OF 2009 IN O.S. NO.21 OF SUB COURT, THIRUVALLA. EXHIBIT P6 TRUE COPY OF ORDER DATED 6.11.2009 IN I.A. NO.1475 OF 2009 IN O.S. NO.21 OF 2007 OF SUB COURT, THIRUVALLA DATED 6.11.2009. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY P.S. TO JUDGE THOMAS P.JOSEPH, J. ==================================== W.P(C) No.24588 of 2010 ==================================== Dated this the 18th day of July, 2011 J U D G M E N T Plaintiff in O.S. No.21 of 2007 of the court of learned Sub Judge, Thiruvalla is the petitioner before me challenging Ext.P6, order dismissing I.A. No.1475 of 2009. 2. Petitioner sued for a decree for specific performance of an agreement for sale. Learned Sub Judge issued summons to the respondents and posted the case on 21.06.2008. It is submitted that on that day respondents appeared but the suit was dismissed for the reason that there was no representation for petitioner. Petitioner filed I.A. No.900 of 2008 for restoration. That application was allowed on payment of costs of Rs.750/- and the application was posted on 05.12.2008. That day, it is stated that on account of hospitalisation of counsel for petitioner costs could not be paid and hence I.A. No.900 of 2008 was dismissed for default. Later petitioner filed I.A. Nos.951 and 951 of 2009 for restoration of the suit and to condone the delay of 35 days in filing the restoration application. Those applications were dismissed as per Exts.P2 and P3, orders for not taking steps. Thereon petitioner filed I.A. W.P(C) No.24588 of 2010 -: 2 :- No.1425 of 2009 for review of Exts.P2 and P3, orders. On that application the office of learned Sub Judge noted some defects and petitioner was directed to cure the defects within three days. It is stated that by that time counsel who was appearing for petitioner expired and a new counsel was engaged, that counsel could not cure the defects within the time specified and hence filed I.A. No.1475 of 2009 seeking a few days' time to cure the defects in I.A. No.1425 of 2009. That application was dismissed as per Ext.P6, order which is under challenge. Learned counsel submitted that petitioner may be given an opportunity to cure the defects in I.A. No.1425 of 2009 and prosecute that application. Learned counsel for respondents submitted that circumstances revealed contumacious negligence on the part of petitioner. 3. Having heard counsel on both sides I am not inclined to think that there was contumacious negligence on the part of petitioner to the extent it concerned prosecution of I.A. No.1475 of 2009 (which alone is being considered here). Hence I am inclined to give an opportunity to the petitioner to cure defects in I.A. No.1425 of 2009. Resultantly, this Original Petition is allowed. Exhibit P6, order dated November 06, 2009 on I.A. No.1475 of 2009 is set aside. That application will stand allowed. Consequently if I.A. No.1425 of 2009 has already been rejected, that order will also W.P(C) No.24588 of 2010 -: 3 :- stand set aside. Petitioner will get a week's time from the day a copy of this judgment is received in the court below to cure the defects in I.A. No.1425 of 2009 and on curing defects learned Sub Judge shall proceed with I.A. No.1425 of 2009 as provided under law. THOMAS P. JOSEPH, JUDGE. vsv