IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 1ST OCTOBER 2010 / 9TH ASWINA 1932 OP(C).No. 151 of 2010(O) ------------------------ AGAINST THE ORDER DATED 07/09/2010 IN IA 1725/2001 IN OS.309/1999 of MUNSIFF COURT, DEVICOLAM .................... PETITIONERS ------------------------------- 1. K.RAMAKUMAR, RESIDING AT "SUMTHRUPTHI", KALATHIPARAMBA CROSS ROAD, ERNAKULAM, KOCHI-16. 2. RAMPRASAD UNNI.T, S/O.K.RAMAKUMAR, RESIDING AT "SUMTHRUPTHI", KALATHIPARAMBA CROSS ROAD, ERNAKULAM, KOCHI-16. BY ADV. SRI.RAHUL VENUGOPAL SRI.J.R.PREM NAVAZ J.R. RESPONDENT(S): --------------- 1. PANDIAMMAL, W/O.MAHALINGAM, RESIDING AT HARIJAN COLONY, LEKSHMI KARA, ANAVIRATTY VILLAGE, IDUKKI-685 561. 2. GANESAN ALIAS V.P.R.GANESAN, RESIDING AT HARIJAN COLONY, LEKSHMI KARA, ANAVIRATTY VILLAGE, IDUKKI-685 561. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 01/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.151 of 2010 -------------------------------------- Dated this the 1st day of October, 2010. JUDGMENT This petition arises from a title suit (O.S.No.309 of 1999 of the court of learned Munsiff, Devikulam) instituted way back in the year 1999 and it was hotly contested. According to the petitioners, respondent No.1 has no semblance of right over the suit property and she has put up a false claim aggrieved by the termination of service of her brother as a care taker of petitioners. The suit came up for trial in the list on 03.10.2001. Obviously for absence of respondent No.1, it was dismissed for default. But the same day respondent No.1 filed I.A.No.1725 of 2001 to set aside the dismissal and restore the suit. That application itself was dismissed for default. But that application restored to file as per order on I.A.No.76 of 2003. Thereafter learned Munsiff allowed I.A.No.1725 of 2001. That order was set aside by this Court in C.R.P.No.260 of 2003. This Court directed learned Munsiff to consider the application afresh on its merit. Respondent No.1 has given evidence as PW1. Learned Munsiff considered the application and after hearing both sides allowed it. That order is under challenge in this petition under Article 227 of the Constitution. Learned counsel for petitioners contends that inspite of the direction in C.R.P.No. 260 of 2003 learned Munsiff has not addressed the objection raised by petitioners in Ext.P2, counter. According to the learned counsel respondent No.1 was actually present in the court when the case was about to be called and she just sneaked OP(C) No.151/2010 2 out when the case was called and invited dismissal of the suit with ulterior motives. Case pleaded by respondent No.1 in the affidavit in support of I.A.No.1725 of 22001 is that she is residing at a place where vehicular traffic is scanty and before the suit came in the list for trial her counsel filed witness schedule on her behalf. On the day of trial (03.10.2001) she, along with witnesses were going to the court in a jeep. On the way the jeep developed mechanical defect. Hence they hired another jeep and reached their destination, Devikulam town where the court is situated. By the time they came to the court the case was called and the suit was dismissed for default. Respondent No.1 filed I.A.No.1725 of 2001 on the same day for restoration of the suit stating the above reasons. That application was opposed by petitioners contending that infact even before the case was called respondent No.1 was present in the court and she just got out of courtyard of the court to get a dismissal of the suit and prolong the litigation. It was contended before learned Munsiff that even at the time the case was taken up it was pointed out by counsel for petitioners that just before the case was called respondent No.1 and her witnesses were present in the courtyard of court. Learned Munsiff directed counsel to file an affidavit. Learned Munsiff has observed in the impugned order that the above submission was made by counsel on behalf of petitioners only after the suit was dismissed and that submission in any way was not inconsistent with case set up by respondent No.1 since even according to OP(C) No.151/2010 3 her, she had come to the court sometime after the suit was dismissed for default. In the circumstances learned Munsiff was not inclined to accept the contention of petitioners. 2. Fact remained that on the day of dismissal of the suit itself respondent No.1 has filed I.A.No.1725 of 2001 on 03.10.2001. Certainly she had been to the court on that day. There is no reason to think that she was keeping out to get the suit dismissed trying her luck by seeking restoration of the suit. V.R.Krishna Iyer, J. has reminded subordinate courts as to the approach it should make when an application to set aside dismissal of the suit under Order IX Rule 9 of the Code of Civil Procedure (for short, “the Code”) is being considered. It is held in Sreedhara Kurup v. Mickel (1968 KLT 599) thus: “The touch-stone in a case under O.9, R.9 CPC. is the presence of ‘sufficient cause’ for non- appearance when the suit was called on for hearing. If there is no sufficient cause the Court cannot restore the suit as a matter of grace. On the other hand, it has always to be remembered that the broad principle of natural justice that informs our judicial institution is that a litigant should not be deprived of a hearing unless there has been something equivalent to misconduct or gross negligence on his part. It is largely a matter of wise discretion to be exercised by the Court bearing in mind the wholesome principle that the right of a party to be heard should be OP(C) No.151/2010 4 negatived only if there is gross negligence or gross carelessness and that if some steps have been taken and application for restoration has been made with some diligence and some evidence adduced making out a sufficient cause for absence, restoration should be ordered, minor misconduct or laches being corrected by the common curative of costs. The brooding spirit of natural justice must be in the background while ascertaining whether there is sufficient cause. A strict and narrow construction defeats the ends of justice which can be reached only after a fair fight between the disputants.” Again in P.M.Thankappan v. Muhammed Kutty & Others (1969 KLT 104) the learned Judge stated that one should not be harsh on a petitioner and deny him the opportunity of hearing in court merely because of some negligence. Such a drastic step should be taken only where the degree of negligence is such as could not be condoned. No doubt, learned counsel has a contention that the negligence or willful act on the part of the respondent is contumacious and hence the dismissal of the suit should not have been set aside. What is stated in Sreedhara Kurup v. Mickel is that “if some steps have been taken and application for restoration has been made with some diligence and some evidence adduced making out a sufficient cause for absence, restoration should be ordered”. Here, I stated that the application to set aside dismissal of the suit was filed on the same day the suit was dismissed for default and respondent No.1 has given evidence in support of her case. There is no contra evidence. It is in the circumstances learned Munsiff found that OP(C) No.151/2010 5 respondent No.1 has made out sufficient evidence for her absence in court on 03.10.2001 when the suit was called on for hearing and decided to set aside dismissal of the suit. It is not as if learned Munsiff has exercised a jurisdiction which he did not have or has illegally exercised the jurisdiction. Nor is it a case where the power to set aside dismissal of the suit has been exercised in a perverse, improper or arbitrary manner calling for interference under Article 227 of the Constitution. 3. It is pointed out by learned counsel for petitioners that since the Government has constituted a new Tribunal to deal with disputes of the nature involved in the present suit, the suit is not maintainable in the civil court. That question is not required to be decided in this proceeding. I make it clear that it will be open to the petitioners to seek permission for amendment to their pleadings to raise such a plea, if they are otherwise entitled to do so and as the law provides. If any such a request is made, learned Munsiff shall decide that request after hearing counsel for parties and as provided under law. Original Petition fails. It is dismissed. THOMAS P.JOSEPH, Judge. cks