IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 4TH DECEMBER 2009 / 13TH AGRAHAYANA 1931 WP(C).No. 30088 of 2009(O) -------------------------- AGAINST THE ORDER DATED 28/07/2009 IN IA 1796/08 IN OS.69/2000 of II ADDL.SUB COURT,TRIVANDRUM .................... PETITIONER: --------------- M/S.J.C.R.TRADING PVT.LTD.,COMPANY, SURAAJ,KURUVIKKAD,VATTIYOORKAVU,THIRUVANANTHAPURAM REPRESENTED BY ITS MANAGING DIRECTOR,S.SUSEELAN, MANAGING DIRECTOR,M/S.J.C.R.TRADING PVT.LTD., COMPANY,CARRYING ON BUSINESS UNDER THE NAME&STYLE TRICHUR JEWELLERS,EAST FORT,THIRUVANANTHAPURAM. BY ADV. MR.D.KISHORE RESPONDENTS: --------------- 1. MARTHANDA VARMA,S/O.SRI.R.R.VARMA, RESIDING AT KOWDIAR PALACE,KOWDIAR, THIRUVANANTHAPURAM. 2. RAMA VARMA,S/O.SRI.C.R.R.VARMA, RESIDING AT KOWDIAR PALACE, KOWDIAR,THIRUVANANTHAPURAM. 3. A.J.VARGHESE,S/O.A.V.JOSE, ALUKKA HOUSE,PUTHUSSERIL,ARISTO ROAD, EAST FORT P.O.,THRISSUR. 4. A.J.PAUL,S/O.A.V.JOSE, ALUKKA HOUSE,PUTHUSSERIL,ARISTO ROAD, EAST FORT P.O.,THRISSUR. 5. A.J.JOHN,S/O.A.V.JOSE, ALUKKA HOUSE,PUTHUSSERIL,ARISTO ROAD, EAST FORT P.O.,THRISSUR. ADV. MR.MVS.NAMBOOTHIRY FOR R1,2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.30088 of 2009 - O --------------------------------- Dated this the 4th day of December, 2009 J U D G M E N T Petitioner is the plaintiff in O.S.No.69 of 2000 on the file of the 2nd Additional Sub Court, Thiruvananthapuram. Suit is one for specific performance of a contract of sale and the respondents are the defendants. Initially, the suit was instituted against the first and second defendants alone, but, later, respondents 3 to 5 were impleaded as additional defendants since they have purchased the property covered by the contract of sale during the pendency of the suit. The defendants resisted the suit filing separate written statements wherein they have disputed the contract of sale set up by the plaintiff. The case came up in the special list for trial after completion of the pretrial steps on 2.2.2008. Petitioner/plaintiff moved an application for removal of the case from the list on medical grounds. That application was allowed subject to payment of cost of Rs.1,000/- and the case was adjourned to trial on 18.2.2008. On that adjourned day also the plaintiff applied for further adjournment stating that the W.P.(C).No.30088 of 2009 - O 2 witness to be examined on its behalf is still indisposed. The court again adjourned the case to 26.2.2008 imposing a cost of Rs.2,000/-. On 26.2.2008, noticing that the cost ordered was not paid the suit was dismissed imposing cost of Rs.5,000/- . Plaintiff then moved an application, I.A.No.1796 of 2008 (Ext.P3) for restoring the suit dismissed for default. That application was allowed by the court vide Ext.P4 order subject to payment of cost of Rs.7,000/- to each of the defendants. Petitioner/plaintiff moved Ext.P5 application, I.A.No.6138 of 2009 for reviewing Ext.P4 order. That review application was dismissed vide Ext.P6 order dated 25.8.2009. Propriety and correctness of Exts.P4 and P6 orders are challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. Notice given, first and second respondents have entered appearance. Notice was also given to the counsel appearing for the respondents 3 to 5 as directed and a memo had been filed evidencing such service on those respondents. But, those respondents have not entered appearance. I heard the W.P.(C).No.30088 of 2009 - O 3 counsel for the petitioner and also the learned counsel for respondents 1 & 2. 3. Perusing P4 and P6 orders with reference to the submissions made by the counsel on both sides and taking note of the facts and circumstances presented, I find no impropriety or illegality in the orders passed by the learned Sub Judge imposing cost on the petitioner as fixed under Ext.P4 order as a condition precedent for restoring the suit which had been dismissed for default. So far as P6 order dismissing the application filed by the plaintiff for reviewing P4 order, prima facie, no justifiable ground had been made out by the petitioner/plaintiff. However, learned counsel for the petitioner/plaintiff urged for indulgence of this Court submitting that a sum of Rs.2.75 Lakhs had been paid by the plaintiff towards court fee on the suit valuation of Rs.30 Lakhs, the amount fixed under the contract of sale over the property, and if P4 and P6 orders are allowed to stand petitioner/plaintiff will be put to severe hardship and irreparable injury. Petitioner/plaintiff may be permitted to have a decision in his suit on merits is the plea canvassed by the learned counsel. W.P.(C).No.30088 of 2009 - O 4 Suit instituted in the year 2000 continues to be on the file of the court apparently for the lack of diligence, if not of culpable negligence or willful default of the petitioner/plaintiff in prosecuting the suit. Facts would disclose that the defendants are forced to defend the suit claim raised for the last nearly a decade in more than one court. Considering the above circumstance, I find that indulgence can be shown to the petitioner/plaintiff only on compensating the injury likely to be suffered by the defendants in restoring a suit which had been dismissed for default nearly one year ago. So much so, in lieu of the sums imposed by the court as cost for adjourning/dismissing/restoring of the case, Rs.2,000/- on 18.2.2008, Rs.5,000/- on 26.2.2008, and also Rs.7,000/- each to the defendants under P3 allowing the application for restoration, the petitioner/plaintiff is directed to pay Rs.10,000/- each to all the five defendants as a condition precedent for setting aside P4 and P6 orders challenged in the petition. Cost ordered as above shall be deposited or paid to the respective counsel appearing for the defendants in the court below within three weeks from the W.P.(C).No.30088 of 2009 - O 5 date of this judgment. If cost is deposited or paid as directed within the time limit fixed the court below shall restore the suit on file and dispose it, as expeditiously as possible, at any rate, before closing of the courts of the mid summer vacation, 2010. In default of payment of cost as ordered within the time fixed, the dismissal of suit by court below shall stand. Writ petition disposed of as above. S.S.SATHEESACHANDRAN, JUDGE. bkn/-