IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 23RD JANUARY 2009 / 3RD MAGHA 1930 FAO.No.212 of 2007 ----------------------- AGAINST THE ORDER DATED 07/04/2007 IN IA.6/07 IN LAR.14/2003 of SUB COURT, HOSDURG .................... APPELLANT/APPLICANT/CLAIMANT: --------------------------------------- P.A. MOIDU HAJI, S/O. ABDULLA, RESIDING POOCHAKKAD, KEEKAN VILLAGE, HOSDURG. BY ADV. SRI.SUBHASH SYRIAC RESPONDENT/PETITIONER/PLAINTIFF: ------------------------------------------- THE SPECIAL TAHSILDAR, L.A. (NATIONAL HIGHWAY), KANNUR. GOVERNMENT PLEADER THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 23/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & P.R. RAMACHANDRA MENON, JJ. ------------------------------------------ F.A.O. No.212 OF 2007 ------------------------------------------ Dated this the 23rd day of January, 2009. J U D G M E N T Kurian Joseph, J. This is an appeal filed against the order dated 07.04.2007 in I.A.No.6/2007 in L.A.R.No.14/2003 on the file of the Sub Court, Hosdurg. The claimant is the appellant. On the ground that the claimant-appellant was absent before the reference court, the reference was answered against the claimant, in the absence of any evidence, by judgment dated 25.11.2006 in L.A.R.No.14/2003. Thereafter, it is seen that the claimant filed I.A.No.6/2007 under Order IX Rule 9 of the Code of Civil Procedure to restore the reference into file. The said application was dismissed and hence the appeal. 2. Though we fully endorse the view taken by the reference court with regard to the conduct of the claimant before the reference court, having regard to the fact that the reference has F.A.O.212/07 2 not been answered on merits, the judgment has to be set aside either in a regular appeal before this Court or in these proceedings. In order to avoid multiplicity of proceedings, we feel that it will be only in the interests of justice that the appellant-claimant is given an opportunity before the reference court to adduce evidence, on terms. Accordingly, we set aside the order dated 07.04.2007 in I.A.No.6/2007 in L.A.R.No.14/2003 and the judgment dated 25.11.2006 in L.A.R.No.14/2003 on the file of the Sub Court, Hosdurg. The appellant shall appear before the reference court on 03.03.2009. The appellant-claimant as well as the respondent shall be given a fresh opportunity to adduce evidence. Thereafter, the reference shall be answered within another three months. We make it clear that in the event of any enhancement being granted, the appellant-claimant shall not be entitled for interest at the rate of 15% from 25.11.2006 to the date of the judgment passed by the reference court as above. The appellant will produce a copy of this judgment before the reference court F.A.O.212/07 3 within a period of two weeks from today and he will also serve a copy on the Government Pleader appearing for the respondent before the reference court. The appeal is disposed of as above. KURIAN JOSEPH JUDGE P.R. RAMACHANDRA MENON JUDGE smp F.A.O.212/07 4 KURIAN JOSEPH & P.R. RAMACHANDRA MENON, JJ. F.A.O. No. 212 OF 2007 J U D G M E N T 23.01.2009