IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 9TH JUNE 2008 / 19TH JYAISHTA 1930 WP(C).No. 8364 of 2008(U) ------------------------- AGAINST THE ORDER DATED IN IA.3478/2005 IN OS.135/1999 of PRL.MUNSIFF COURT, CHERTHALA .................... PETITIONER: ------------ V.M.MOHAMMED RAFEEQ DEPUTY SUPERINTENDENT OF POLICE, OFFICE OF THE DEPUTY SUPERINTENDENT OF POLICE JAWAHARLAL NEHRU INTERNATIONAL STADIUM COMPLEX KALOOR, ERNAKULAM. BY ADV. SRI.V.L.SHENOY RESPONDENTS: ------------- 1. PURUSHOTHAMAN, S/O.KUTTACHAN KADAVIL HOUSE, WARD NO.10, EZHUPUNNA. 2. MONEY, S/O.THEVAN, POOPADITHARA HOUSE EZHUPUNNA PANCHAYATH, WARD NO.IV, EZHUPUNNA. BY ADVS. SRI.N.N.SUGUNAPALAN (SR.) SRI.S.SUJIN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: Ext.P1: Copy of the judgment dated 31.10.2005 in O.S.135/1999 on the file of Principal Munsiff's Court, Cherthala. Ext.P2: Copy of the decree dated 31.10.2005 in O.S.135/1999 on the file of Principal Munsiff's Court, Cherthala. Ext.P3: Copy of the petition - IA 3478/2005 in O.S.135/1999 on the file of Principal Munsiff's Court, Cherthala dated 17.11.2005. Ext.P4: Counter affidavit filed by the petitioner in IA 3478/2005 in O.S.135/1999 on the file of Principal Munsiff's Court, Cherthala dated 14.7.2006. Ext.P5: Copy of the B Diary in O.S.135/1999 on the file of Principal Munsiff's Court, Cherthala . Ext.P6: Copy of the order dated 7.12.2007 in IA 3478/2005 in O.S.135/1999 on the file of Principal Munsiff's Court, Cherthala. RESPONDENTS' EXHIBITS: Ext.R1(a): True copy of the judgment in S.T. No.1224 of 1994 on the file of the Judicial First Class Magistrate Court II, Cherthala. Ext.R1(b): True copy of the judgment in C.C. No.435 of 1995 on the file of the Judicial First Class Magistrate Court II, Cherthala. HARUN-UL-RASHID, J. -------------------------------------------- W.P.(C)NO.8364 OF 2008 -------------------------------------------- Dated this the 9th day of June, 2008 JUDGMENT This Writ Petition is filed by the first defendant in O.S. No.135 of 1999 on the file of the Principal Munsiff's Court, Cherthala. The relief sought for in the Writ Petition is for issuance of a Writ of Certiorari to quash Ext.P6 order. 2. The suit was filed by the first respondent herein who is the plaintiff in the suit for damages and malicious prosecution. The damages claimed is Rs.1,00,000/-. According to the plaintiff , the first defendant misusing, abusing and acting beyond his official capacity registered false case against him and others under Sections 143, 147, 148, 323 and 324 I.P.C. as C.C. No.435 of 1995. The first defendant filed an application, I.A. No.2878 of 2005 requesting the court to adjudicate the question of limitation as a preliminary issue. The said application was posted to 1.10.2005 for filing objections. The case was then adjourned to 13.10.2005, 14,10,2005 and again on 17.10.2005 for objection and W.P.(C)NO.8364/2008 2 hearing. On 17.10.2005, the plaintiff filed objection and the court posted the case to 18.10.2005. The matter was heard on 18.10.2005 and the case was posted to 19.10.2005, 20.10.2005 and again on 21.10.2005 for orders. On 21.10.2005, the application was allowed and the court posted the suit to 27.10.2005 for final hearing on the question of preliminary issue. The matter was again adjourned to 29.10.2005. The matter was heard on 29.10.2005 and posted to 31.10.2005 for orders. On 31.10.2005, the court below passed Ext.P1 judgment considering the question elaborately and deciding the case on merits. By Ext.P1 judgment, the court below dismissed the suit finding that the suit is barred by limitation. 3. From the order sheet which I have referred to above, it can be seen that opportunity was given to both sides for filing pleadings and adducing evidence. Ultimately, the case was heard on 29.10.2005 and Ext.P1 judgment was passed on 31.10.2005. The trial court after referring to the provisions of the Limitation Act and the Kerala Police Act held that the Kerala Police Act provides for a prescribed period for instituting a suit for malicious prosecution against a police officer. The court below extracted the relevant portion of the Kerala Police Act and held that the cause of action of the suit arose prior to the date of charging of C.C. No.435 of 1995 and that the present suit is filed on 11.2.1999. According W.P.(C)NO.8364/2008 3 to the learned Judge, the suit was barred by limitation. The judgment dismissing the suit was not challenged by the plaintiff by filing an appeal. On 17.112005, the plaintiff filed I.A. No.3478 of 2005 stating that the judgment and decree dated 31.10.2005 was passed ex parte and prayed for restoration of the suit. In the affidavit filed in support of the application, it is stated that the suit was dismissed for default and hence the same may be restored to file under Order IX Rule 9 C.P.C. 4. I have gone through Ext.P1 judgment and I find that the contentions of both sides were considered by the court below. The plaintiff without any bona fides filed Ext.P3 application supported by the affidavit for restoration of the suit as if the suit was dismissed for default. I find that the suit was decided on merits and if the plaintiff was aggrieved by the decision, he should have taken up the matter in appeal. Ext P3 application filed for restoration of the suit is , therefore, misconceived and unsustainable. The trial court as per Ext.P6 order allowed the application for restoration of the suit. Ext.P6 order is under challenge in this Writ Petition at the instance of the first defendant. 5. I have already narrated the nature of the judgment of the trial court and the non maintainability of the application under Order IX Rule 9 W.P.(C)NO.8364/2008 4 C.P.C. Ext.P6 order is, therefore, illegal. Accordingly, I quash Ext.P6 order passed by the court below. The Writ Petition is allowed as above. (HARUN-UL-RASHID, JUDGE) sp/ W.P.(C)NO.8364/2008 5 HAURN-UL-RASHID, J. W.P.(C)NO. 8364/2008 JUDGMENT 9TH JUNE, 2008