IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 10TH JANUARY 2008 / 20TH POUSHA 1929 CRP.No. 177 of 2005(B) ---------------------- ( CMA.679/2002 of ADDL.DISTRICT COURT, THRISSUR I.A. 2774 OF 2001 IN OS.838/1994 of ADDL.SUB COURT, IRINJALAKUDA) REVN. PETITIONERS/ APPELLANTS/PETITIONERS/PLAINTIFFS: ---------------------------------------------------- 1. VAREED, S/O. CHIRAYATH PALLIPPURAM VARUNNY, RETD.TEACHER, MOORKKANADU DESOM, PARATHISSERY VILLAGE, MUKUNDAPURAM TALUK. 2. DAVIS, RTD. TEACHER, S/O.CHIRAYATH PALLIPPURAM VARUNNY, MOORKKANADU DESOM, PARATHISSERY VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.N.P.SAMUEL ADV. SRI.RUPESH V.R. RESPONDENTS/RESPONDENTS/RESPONDENTS/DEFENDANTS: --------------------------------------------------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, THRISSUR. 2. OFFICER, SOIL CONSERVATOR'S OFFICE, THRISSUR. *3. R-320 CHEMMANDA KAYAL PULIYAMPADAM KADUMKRISHI KARSHAKA SAHAKARANA SANGHAM LTD., REPRESENTED BY PRESIDENT, MOHANAN, S/O. KAKKARY VELAYUDHAN, KARALAM VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. *4. SRI.VASUDEVAN, SECRETARY, R-320 CHEMMANDA KAYAL PULIYAMPADAM KADUMKRISHI KARSHAKA SAHAKARANA SANGHAM LTD., KARALAM VILLAGE, MUKUNDAPURAM TALUK,THRISSUR DIST. (*ADDRESS OF RESPONDENT NOS. 3 AND 4 ARE CORRECTED AS PER ORDER DATED 25.07.2006 ON I.A.NO. 1974 OF 2006 AS FOLLOWS: CRP.No. 177 of 2005(B) *3. R-320 CHEMMANDA KAYAL PULIYAMPADAM KADUMKRISHI KARSHAKA SAHAKARANA SANGHAM LTD., REPRESENTED BY THE PRESIDENT, P.P. RAJAN, P.O. KARALAM, THRISSUR DISTRICT. *4. SMT. SURAJA, SECRETARY, R-320 CHEMMANDA KAYAL PULIYAMPADAM KADUMKRISHI KARSHAKA SAHAKARANA SANGHAM LTD., P.O. KARALAM, THRISSUR DIST. ) BY SR. GOVERNMENT PLEADER SMT. M.K. PUSHPALATHA. ADV. SRI.RENJITH THAMPAN ADV. SMT.P.A.ANITHA THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T. SANKARAN, J. ................................................................................... C.R.P. No. 177 OF 2005 ................................................................................... Dated this the 10th January, 2008 O R D E R The plaintiffs in O.S.No. 838 of 1994 on the file of the Additional Sub Court, Irinjalakkuda are the revision petitioners. The suit was originally listed for trial in the special list in October, 2000 and it was adjourned. The case was ordered to be included in the special list for trial on 10.07.2001. However, it was not shown in the published list. The case of the petitioners is that though the plaintiffs and the witnesses were present on 10.07.2001, since the case was not included in the published list, the suit was adjourned. According to the petitioners, they thought that the suit was removed from the list and they would be intimated about the listing of the case again. On 27.07.2001, when the suit was taken up for trial, the plaintiffs were not present. Accordingly, the suit was dismissed for default. An application for restoration of the suit was filed within time as I.A.No. 2774 of 2001. In the affidavit filed in support of the application for restoration of the suit, it was stated that the petitioners were under the impression that the suit was removed from the list on 10.07.2001 and they thought that it would be listed again after due intimation. An affidavit sworn to by the counsel was also filed in support of the application for restoration of the suit. In I.A.No. 2774 of 2001, the second plaintiff was examined as P.W.1. No evidence was adduced by the respondents, though they had opposed the application and filed counter statement. The trial court dismissed the application holding that the reasons stated by the petitioners for their non appearance on 27.07.2001 are not correct. The petitioners challenged the said order in C.M.A.No. 679 of 2002. The lower appellate court C.R.P. No. 177 OF 2005 2 dismissed the appeal. 2. The contention of the petitioners that on 10.07.2001, the second plaintiff and witnesses were present is not seen disputed by the respondents. That shows the plaintiffs were ready with the case. Whether they were under a wrong impression that the suit would be listed after due notice is correct or not, the fact remains that they were present on 10.07.2001 and they were ready for trial. On 10.07.2001, the case was adjourned because the suit was not included in the published list. The fact that the counsel has also sworn to an affidavit in support of the averments made by the petitioners would fortify the contention of the petitioners that they were under a wrong impression about the posting and listing of the case. A meticulous analysis of the facts and circumstances of the case, as to whether the impression gathered by the petitioners was true, genuine and real, need not be undertaken in an application for restoration. If the court feels that the averments in the application are not fully satisfactory , still the court could restore the suit on payment of costs. It is true that the petitioners should show sufficient cause for their non appearance. To my mind, some explanation is shown. Probably it could be said ,as the court below said, that those averments are not fully proved. By allowing an application for restoration, the only consequence would be disposal of the suit on the merits. It cannot be said that the defendants would be prejudiced by disposal of the suit on the merits. At the same time, the defendants must be compensated for the inconvenience caused to them. 3. In the facts and circumstances of the case, I am of the view that I.A.No. 2774 of 2001 can be allowed on payment of cost of Rs. 1500/- each in two sets, that is, Rs. 1500/- to respondent Nos. 1 and 2 in the application and Rs.1500/- to respondent Nos. 3 and 4 in the application. The costs shall be paid within a period of six weeks C.R.P. No. 177 OF 2005 3 from today . If the petitioners pay or deposit the costs as aforesaid, the Civil Revision Petition will stand allowed and the order and judgment passed by the courts below will stand set aside and I.A.No. 2774 will stand allowed. On failure to pay the costs, the Civil Revision Petition will stand dismissed. If the aforesaid conditions are complied with, the trial court shall include the case in the special list at the earliest and dispose of the same. K.T. SANKARAN, JUDGE. lk