IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 19TH MAY 2010 / 29TH VAISAKHA 1932 FAO.No. 234 of 2009() --------------------- AGAINST THE ORDER DATED 03/06/2009 IN IA 5128/08 IN LAR.22/2007 of PRINCIPAL SUB COURT,PARAVUR .................... APPELLANT/PETITIONER/CLAIMANT: ----------------------------- JOSE, S/O. THOMAS, KANAPPILLY HOUSE VALLUVALLY, KOONAMMAVU P.O. (DIED) ADDL.APPELLANTS: 2.JAYA,AGED 71 YEARS, W/O.LATE JOSE THOMAS, KANAPPILLY HOUSE, 208/IV, THOTTAKATTUKARA, ALUVA PIN-683 108. 3.THOMAS K.J., AGED 48 YEARS, S/O.LATE JOSE THOMAS, KANAPPILLY HOUSE, KOONAMMAVU P.O., PIN-683 518. 4.GEORGE K.J., AGED 47 YEARS, S/O.LATE JOSE THOMAS, KANAPPILLY HOUSE, 208/W, THOTTAKATTUKARA, ALUVA, PIN-683 108, REP. BY HIS POWER OF ATTORNEY, MANOJ K. JOSE. 5.MATHEW K.J., AGED 44, S/O.LATE JOSE THOMAS, KANAPPILLY HOUSE, 208/W, THOTTAKATTUKARA, ALUVA, PIN-683 108. 6.ASHA KIM, AGED 37 YEARS,D/O.LATE JOSE THOMAS, W/O.KIM PADAMADAN, PADAMADAN HOUSE, LISIE HOSPITAL ROAD, COCHIN-682 018. 7.MAJOJ K.JOSE, AGED 34,S/O.LATE JOSE THOMAS, KANAPPILLY HOUSE, 208/W, THOTTAKATTUKARA, ALUVA, PIN-683 108 ADDL.APPELLANTS 2 TO 7 ARE IMPLEADED AS PER ORDER DATED 19.5.2010 IN F.A.O.NO.234 OF 2009. BY ADV. SRI.A.V.XAVIER SRI.K.JOLLY JOHN RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY THE SPECIAL TAHSILDAR (LA) N.H.NO.111, VYTTILA ,COCHIN 682 019. BY GOVT.PLEADER SRI.K.B.RAMANAND THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 19/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B. RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ------------------------------- F.A.O.NO.234 OF 2009 () ----------------------------------- Dated this the 19th day of May, 2010 J U D G M E N T THOTTATHIL B. RADHAKRISHNAN, J. L.A.R.No.22 of 2007 on the file of the Principal Sub Judge's Court, North Paravur was disposed of by that court on 30.8.2008 on the premise that no claim statement was filed and there is no representation by the claimant. It was recorded that the claimant was absent. Though that judgment states that the materials have been perused by the learned Sub Judge and that there is no evidence to substantiate the claim of the petitioner, obviously, the court proceeded on the basis that the claimant had no pleadings on record in the form of a claim statement. But the materials produced as Annexure A1 to A3 categorically shows that there was a claim statement on record and the court had received it. Obviously, therefore, we have necessarily to treat FAO.234/09 2 the judgment dated 30.8.2008 as an ex parte one. 2. The claimant filed I.A.No.5128 of 2008 invoking Order IX Rule 9 read with Section 151 of the Code of Civil Procedure seeking an order restoring the land acquisition reference to file after setting aside the order dated 30.8.2008. It is essentially an application to set aside the ex parte judgment and award issued on 30.8.2008. 3. The court below, however, took the view that the reference was already answered by the court by pronouncement of judgment, and therefore, it could be challenged only by filing an appeal and the application I.A.No.5128 of 2008 was dismissed as not maintainable. 4. Needless to say, going by the different precedents laid down by the apex court and this Court, the land acquisition reference has all trappings of a civil suit. This principle is also reiterated in Shahida Beevi v. State of Kerala (2008 (1) KLT 206), wherein this Court categorically laid down that in cases of FAO.234/09 3 ex parte disposal on default of the claimant, it would be open to the claimant to move for restoration by invoking the provisions of Order IX Rule 9 read with Section 151 of the CPC. We are inclined to take a view that the said judgment applied on all fours to the facts and circumstances of this case. 5. The learned Govt.Pleader pointed out that there may be a direction excluding the claimant from enjoying the interest, if any, that may be granted by the court below for the period from 30.8.2008 to today. We are not inclined to pass such an order because we do not find that the claimant was at any grave fault on any ground. We are of the view that the claimant had shown sufficient cause by the pleadings in his affidavit in support of I.A.No.5128 of 2008. Accordingly, the said application deserves to be allowed. In the result, the impugned order passed in I.A.No.5128 of 2008 is vacated and I.A.No.5128 of 2008 in L.A.R.No.22 of 2007 of the learned Principal Sub Judge, North Paravur, is allowed. The court below will take up L.A.R.No.22 of 2007 back to file and FAO.234/09 4 try and dispose it in accordance with law at the earliest. Appeal is allowed accordingly. THOTTATHIL B. RADHAKRISHNAN JUDGE S.S.SATHEESACHANDRAN JUDGE prp