IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 29TH SEPTEMBER 2010 / 7TH ASWINA 1932 WP(C).No. 30664 of 2009(O) --------------------------------------- OS.117/2004 of PRINCIPAL SUB COURT,KOLLAM .................... PETITIONER(S): ----------------------- ABDUL VAHID, AGED 55 YEARS, SON OF KUNJU MYTHEEN KUNJU, KURUTTAZHIKATHU VEEDU, MANACADU CHERRY, VADAKKEVILA VILLAGE, KOLLAM TALUK. BY ADVS. SRI.M.SHAHEED AHMAD SRI.N.KRISHNA PRASAD RESPONDENT(S): ------------------------- 1. AHAMED KABEER, AGED 62 YEARS, SON OF KUNJU MYTHEEN KUNJU, SULTHANA ZAM ZAM NAGAR NO. 290 KOLLAM TALUK. 2. JALALUDEEN, AGED 49 YEARS, SON OF KUNJU MYTHEEN KUNJU, KARUTTAZHIKATHU VEEDU, MANACADU CHERRY, VADAKKEVILA VILLAGE, KOLLAM TALUK. R1 & R2 BY ADV. SRI.K.SUBASH CHANDRA BOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.30664/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE SUIT FILED BY THE PETITIONER BEFORE THE HONOURABLE SUB COURT, KOLLAM. P2:- COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENTS (DEFENDANTS IN OS. 117/2004. P3:- COPY OF THE ORDER BY WHICH THE COURT FRAMED THE PRELIMINARY ISSUES DTD. 2.6.05 . P4:- COPY OF THE JUDGMENT OF THE LEARNED SUB JUDGE IN OS. 117.04 DTD. 26.8.08. TRUE COPY P.S. TO JUDGE tss HARUN-UL-RASHID,J. ------------------------------- W.P.(C). NO. 30664 OF 2009 ------------------------------- DATED THIS THE 29TH DAY OF SEPTEMBER, 2010 JUDGMENT Plaintiff in O.S.No.117/2004 on the file of the Sub Court, Kollam is the petitioner herein. Respondents herein are the defendants in the suit. Parties are brothers. The suit was filed for partition of the plaint schedule properties. Ext.P1 is the copy of the plaint and Ext.P2 is the copy of the written statement. On the basis of the pleadings, the court below framed two preliminary issues; whether the suit is maintainable and whether the valuation of the suit and the court fee paid are correct. When the matter was posted for hearing on the preliminary issues, the plaintiff was continuously absent. Hence, the court below passed Ext.P4 judgment dismissing the suit. In Ext.P4 judgment the court observed that the learned counsel for the plaintiff did not appear before the court on several prior occasions, that the plaintiff is not vigilant in prosecuting the case and in such circumstances, the -2- WP(C).No.30664/09 court is not in a position to proceed with the matter. 2. The learned counsel for the plaintiff submitted that the suit was posted for hearing on 26/8/2008. The learned counsel sought for adjournment of the case. But the learned Sub Judge did not grant adjournment and passed Ext.P4 judgment on the same day. The learned Counsel also submitted that in fact there was representation on 26/8/08 and the same was stated in Ext.P4. He pleaded that an opportunity may be given to the plaintiff to prosecute the case. The suit was for partition. The defendants are brothers of the plaintiff. It is true that there is laches on the part of the plaintiff in prosecuting the case vigilantly. Finding that there is no co-operation on the side of the plaintiff the court below dismissed the suit. The learned counsel for the petitioner submitted that the suit is for partition and if Ext.P4 judgment is not set aside, the plaintiff in the suit will be put to severe hardship and irreparable injury. The learned counsel also submitted that the plaintiff changed the counsel, who appeared originally before the trial court -3- WP(C).No.30664/09 and that an opportunity may be given to the plaintiff to prosecute the case without any fault. 3. In the circumstances, for the reason that the suit was dismissed for default and there was no consideration of the case of the plaintiff on merits, this Court is of the view that an opportunity shall be given to the plaintiff to prosecute his case before the court below. In the circumstances, Ext.P4 judgment is set aside. The Sub Court, Kollam is directed to proceed with the suit. Writ petition is disposed of as above. Sd/- HARUN-UL-RASHID, Judge. kcv. -4- WP(C).No.30664/09