IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 18TH MARCH 2009 / 27TH PHALGUNA 1930 CRP.No. 197 of 2009 CMA.68/2008 of D.C. & SESSIONS COURT,KOZHIKODE OS.59/2001 of I ADDL.SUB COURT, KOZHIKODE (IA 601/08) REVN. PETITIONERS: APPELLANTS/RESPONDENTS: 1. KOCHALATHU THANKA, AGED 60 YEARS, W/O.NARAYANAN, KOTTAPURATHU, CHERUKAVU AMSOM AND DESOM OF ERANADU TALUK. 2. RAJAN, AGED 42 YEARS, S/O.NARAYANAN, KOTTAPURATHU, CHERUKAVU AMSOM AND DESOM OF ERANADU TALUK. 3. BINDU, AGED 42 YEARS, S/O.NARAYANAN, KOTTAPURATHU, CHERUKAVU AMSOM AND DESOM OF ERANADU TALUK. 4. SINDHU, AGED 37 YEARS, D/O.NARAYANAN, KOTTAPURATHU, CHERUKAVU AMSOM AND DESOM OF ERANADU TALUK. 5. DHANYA, AGED 33 YEARS, D/O.NARAYANAN, KOTTAPURATHU, CHERUKAVU AMSOM AND DESOM OF ERANADU TALUK. 6. SANDYA, AGED 32 YEARS, D/O.NARAYANAN, KOTTAPURATHU, CHERUKAVU AMSOM AND DESOM OF ERANADU TALUK. 7. SAJEESH, AGED 31 YEARS, S/O.NARAYANAN, KOTTAPURATHU, CHERUKAVU AMSOM AND DESOM OF ERANADU TALUK. BY ADV. SRI.JACOB ABRAHAM SMT.KOCHUMOL KODUVATH RESPONDENT: APPELLANT/PETITIONER BALAN, AGED 57 YEARS, S/O.RAMAN, NAMBAYIL, RESIDING AT KOLAKKATTIL VEETTIL, CHERUKAVU AMSOM, DESOM, ERANADU TALUK. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ C.R.P. NO. 197 OF 2009 ------------------------------------------------------ Dated this the 18th March, 2009 O R D E R The respondent filed O.S.No.59 of 2001, on the file of the Court of the I Additional Sub Judge, Kozhikode, against the petitioners. The suit was dismissed for default. The respondent filed an application under Order IX Rule 9 of the Code of Civil Procedure. The trial court by the order dated 17.7.2008, dismissed that application. On appeal by the respondent (C.M.A.No.68 of 2008), the appellate court set aside the order passed by the trial court and allowed the application under Order IX Rule 9 of the Code of Civil Procedure. The Civil Revision Petition is filed challenging the judgment in C.M.A.No.68 of 2008, District Court, Kozhikode. 2. The suit was posted for trial on 1.2.2008. The suit was dismissed on that date on the ground that the plaintiff did not file the proof affidavit (chief affidavit). The plaintiff had filed an application for transfer of the case to be tried along with O.S.No.413 of 2005, pending before the III Additional Sub Court, Kozhikode. The Transfer Petition was posted to 2.2.2008. On 31.1.2008, an application was filed by the plaintiff to stay the suit till the disposal of the Transfer Petition. However, the trial court C.R.P. NO. 197 OF 2009 :: 2 :: dismissed the application and also dismissed the suit for default. The trial court held, while dismissing the application under Order IX Rule 9 of the Code of Civil Procedure, that the suit happened to be dismissed on account of the wilful laches and negligence on the part of the plaintiff. The Appellate Court considered the facts and circumstances of the case and held that an opportunity should be afforded to the plaintiff to prosecute the suit on the merits. Discretion was exercised by the court to allow the application under Order IX Rule 9 of the Code of Civil Procedure. Normally, discretion exercised by the court in allowing the application for restoration of the suit would not be interfered with in Revision under Section 115 of the Code of Civil Procedure. I do not think that the court below has committed any error in allowing the application. There is no scope for interference in Revision. The Civil Revision Petition is accordingly dismissed. (K.T.SANKARAN) Judge ahz/