IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 8TH JULY 2009 / 17TH ASHADHA 1931 CRP.No. 1464 of 2004(B) ----------------------- CMA.1/2003 of ADDL.SUB COURT, KOCHI OS.275/2000 of PRL.M.C., KOCHI . ................... REVN. PETITIONER(S): APPELLANTS/PLAINTIFFS ------------------------------------------ 1. M.K.LATHIKA, AGED 49, W/O.M.K.BHAKARAN, HINDU, RESIDING AT MANTHOPPIL HOUE, MADATHIPARAMBU, PALLURUTHY SOUTU MURI, EDAKOCHI VILLAGE, KOCHI TALUK. 2. M.K.BHASKARAN, AGED 56 YEARS, RESIDING AT MANTHOPPIL HOUSE, MADATHIPARAMBU, PALLURUTHY SOUTH MURI, EDAKOCHI VILLAGE, KOCHI TALUK. BY ADV. SRI.T.K.KURIKESU SRI.THOMAS KURIKESU RESPONDENT(S): RESPONDENTS/DEFENDANTS ------------------------------------- 1. K.PARAMESWARAN, S/O.KELAN, SAJINI NIVAS, MADATHIPARAMBIL, PALLURUTHY, SOUTH MURI, EDAKOCHI(DIED). 2. P.SELVARAJ, S/O.K.PARAMESWARAN, AGED 39, RESIDING AT SAJINI NIVAS, DOOR NO.C.C.XXXII/1104, PALLURUTHY SOUTH MURI, EDAKOCHI VILLAGE, PALLURUTHY, KOCHI-6. 3. SYAMALA DEVI, W/O.BHASI, AGED 45 YEARS, KALAPPURAKKAL HOUSE, MADATHIPARAMBIL, PALURUTHY, SOUTH MURI, KOCHI TALUK, KOCHI-6. 4. CORPORATION OF KOCHI, REP. BY ITS SECRETARY, CORPORATION OF COCHIN, ERNAKULAM. 5. DIVINE PARAMESWARAN, S/O.LATE PARAMESWARAN K., NOW RESIDING AT RAILWAY QUARTERS, QUARTERS NO.1/15-D, MATTANCHERRY HALT, KOCHI-29 FROM SAJINI NIVAS MADATHIPARAMBIL, PALLURUTHY SOUTH MURI, EDAKOCHI VILLAGE. CRP.No. 1464 of 2004(B) : 2 : 6. GEETHA, W/O.SUNIL, CEHRUVALLY PARAMBU, CHULLICKAL, KOCHI-682 005. 7. MITHILI, W/O.LATE K.PARAMESWARAN, DO.DO. (SHE DIED ON 5/12/2000). BY ADV. SMT.K.RADHAMANI AMMA FOR R3 SRI.ANTONY MUKKATH FOR R3 SRI.K.ANAND, SC, COCHIN CORPN. FOR R4 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/07/2009, ALONG WITH CRP NO. 1473 OF 2004 THE COURT ON 08/07/2009 DELIVERED THE FOLLOWING: M. L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - C.R.P. NO: 1464 OF 2004 & C.R.P. NO: 1473 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th Day of July, 2009. O R D E R CRP 1464/04 is filed by the plaintiffs petitioners in IA 1170/02 and CRP 1473/04 is filed by the plaintiffs petitioners in IA 1171/02 in OS 275/00 on the file of Principal Musiff Court, Kochi. The respondents herein are defendants/respondents in that petitions. 2. IA 1170/02 is a petition filed by the plaintiffs in that suit under Order 9 Rule 9 CPC for restoration of that suit which was dismissed for default. IA 1171/02 is a petition filed under Section 5 of the Limitation Act to condone the delay in filing of restoration petition. The Principal Munsiff Court as per common order in IA 1170/02 and IA 1171/02 dt.31.10.2002 dismissed both the above petitions. CMA 1/2003 and CMA 2/2003 filed by the plaintiffs before the Additional Sub Court Kochi against that C.R.P. NO: 1464 & 1473 OF 2004 : 2 : orders were also dismissed. Against that common judgment in CMA 1/03 and CMA 2/03, these CRP's are filed. 3. Heard the learned counsel for the revision petitioners and learned counsel for the respondents. 4. OS 275/00 is a suit for declaration and for injunction. During the pendency of that suit, the first defendant died on 2.1.01. The plaintiff filed a petition for impleading legal heirs of first defendant as additional defendants 5 and 6 and that petition was posted for taking steps. The learned counsel for revision petitioners submitted that due to oversight of the previous counsel, the revision petitioners were not were not informed in time to take steps as per the order of Munsiff Court. Therefore, the counsel for plaintiffs filed an application before the Munsiff Court to remove the case from the list on 18.10.01. But the Munsiff Court did not remove the case from the list and suit was dismissed on 20.10.01. Learned counsel for the revision petitioners submitted that there is a delay of 7 months and 14 days in filing the petition for restoration of the suit and that delay was caused as the previous C.R.P. NO: 1464 & 1473 OF 2004 : 3 : counsel did not inform the revision petitioners about the dismissal of the suit. Learned counsel for the revision petitioners submitted that there was no negligence on the part of the revision petitioners. There is no dispute that the first defendant died during the pendency of the suit and the steps to implead the legal heirs were not completed and in that view of the matter, the case was not ripe for trial. 5. It is well settled that the expression 'sufficient cause' mentioned in Section 5 of Limitation Act and Order 9 Rule 9 CPC has to be construed liberally so as to advance the cause of the justice and not the cause of technicalities. A case should be decided on merits. The primary function of a court is to do substantial justice between the parties. Since the plaintiffs petitioners had shown sufficient cause for the delay in filing the restoration petition and also for their non appearance the learned Munsif court ought to have allowed those petitions. In that view of the matter the learned Sub Judge also went wrong in dismissing both CMAs. Since the order of Munsiff Court and judgment of C.R.P. NO: 1464 & 1473 OF 2004 : 4 : learned Sub Judge would occasion failure of the justice I am of the view that in the interest of justice both CRPs are to be allowed. Accordingly both the above CRPs are allowed and the order dismissing the IA 1170/02 and IA 1171/02 is set aside and both those IA are allowed and OS 275/00 on the file of Pricnipal Munsiff Court, Kochi is restored to file. Learned Munsiff court is directed to dispose of the case in accordance with the law after giving sufficient opportunity to both parties to adduce evidence. Parties are directed to appear before the Munsiff Court on 18.8.09. Parties are directed to suffer their respective costs in CRPs. M. L. JOSEPH FRANCIS, JUDGE. dl/