IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 23RD JUNE 2011 / 2ND ASHADHA 1933 CRP.No. 961 of 2004 AGAINST THE ORDER 9.12.2003 IN I.A.NO.859 OF 2003 IN OS.NO.3/1999 OF SUB COURT, PALA REVN. PETITIONER: PETITIONER/PLAINTIFF . C.G.SASEENDRAN, S/O.GOPALAN, CHUNDIYANICKAL, MARANGATTUPILLY KARA, ELACKAD VILLAGE, REP. BY POWER OF ATTORNEY HOLDER, KOMALAM SASEENDRAN. BY ADVS.M/S SRI.A.X.VARGHESE AND A.V.JOJO ADV. R.MAYAKRISHNAN RESPONDENTS: CR.PETITIONERS IN L.A.859/2003, 1. MATHEW EXAL,. SUB INSPECTOR, KOTTAYAM RAILWAY STATION. 2. ANIAMMA JOHN, W/O.JOHN, KUNNATHUTHARAPPIL, MARANGATTUPPILLY KARA, KURICHITHANAM VILLAGE. 3. JOHN JOHN, KUNNATHUTHARAPPIL, MARANGATTUPPILLY KARA, KURICHITHANAM VILLAGE. 4. JOHN JOY, OF DO. DO. 5. KURIACHAN, OF DO. DO. 6. JOSEPH SAWRI,PUTHENPARAMPIL, MARANGATTUPILLY KARA, ELACKAD VILLAGE. 7. C.N.MATHEW @ MATHAI CHACKULICKAL, DO. KARA, DO. VILLAGE. 8. CHACKO, KUNNATHARAPIL, MARANGATUPILLY KARA, KURICHITHANAM VILLAGE. 9. VARKEY, ELAVANAL HOUSE, DO. KARA, DO. VILLAGE. 10. JOSE, S/O.DEVASSIA, KOLLIYAMKUNNEL DO. KARA DO. VILLAGE. 11. VISWAN, S/O.KUNJIRAMAN, OZHAKKATHOTTIYIL, -DO- KARA. 12. SASI, ADIYANIKAL HOUSE, -DO- KARA. 13. I.V.SASI, COOLY, MARANGATTUPALLY KARA, VAIKOM. 14. CHANDRAN, NARAKATHUMKAL, -DO- KARA, -DO- VILLAGE (ELACKAD). R5 BY ADV. SRI.THOMAS KOSHY R2 AND R3 BY SENIOR ADV. SRI.ABRAHAM VAKKANAL SRI.SAJI KURIACHAN SRI.M.R.NANDAKUMAR SRI.PAUL ABRAHAM VAKKANAL R1 BY ADV. SRI.P.C.HARIDAS THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ C.R.P. NO. 961 OF 2004 ------------------------------------------------------ Dated this the 23rd day of June, 2011 O R D E R The petitioner is the plaintiff in O.S.No.3 of 1999 on the file of the Court of the Subordinate Judge of Pala. The suit was dismissed for default. An application for restoration of the suit was filed by the plaintiff as I.A.No.859 of 2003. That application was dismissed by the order dated 9.12.2003, which is under challenge in this Revision Petition. 2. The learned counsel appearing for the first respondent submitted that the Revision is not maintainable as an appeal lies against the order impugned, under clause (c) of Rule 1 of Order XLIII of the Code of Civil Procedure. 3. It is submitted that the application was filed before the court below under Rule 4 of Order IX of the Code of Civil Procedure. Rule 4 of Order IX of the Code of Civil Procedure does not apply at all. Since the suit was dismissed for default, the C.R.P. NO.961 OF 2004 :: 2 :: court below considered the application as an application for restoration of the suit dismissed for default and that application was dismissed on the merits. The order is appealable under Order XLIII Rule 1(c) of the Code of Civil Procedure. If the order is appealable, a Revision will not lie under Section 115 of the Code of Civil Procedure. 4. Accordingly, the Civil Revision Petition is dismissed as not maintainable. 5. The learned counsel for the petitioner submitted that the petitioner was bona fide prosecuting the Revision from 26.7.2004. He also submitted that no objection was raised by the Registry about the maintainability of the Revision and such an objection was not raised at the time when it came up for admission. Even after appearance of the first respondent, no objection was raised by the first respondent. Even when the case came up in the defect list on 7.3.2008, no objection was raised by the first respondent that the Revision was not maintainable. The petitioner took steps for service of notice on the respondents who were not served. Even now, the service is not complete. The counsel C.R.P. NO.961 OF 2004 :: 3 :: submitted that all the steps taken by the petitioner would show the bona fides of the petitioner. It is also submitted by the counsel for the petitioner that the application for restoration of the suit was filed within time. It is pointed out that application for adjournment of the suit was made by the wife of the petitioner, who was the power of attorney holder of the petitioner. The petitioner was working abroad. The wife of the petitioner was laid up and she produced the medical certificate as well. The counsel also submitted that the application was dismissed in spite of the fact that no objection was raised before the court below by the respondents. These submissions were made by the counsel for the petitioner to show that the petitioner was bona fide prosecuting the Revision for all these years and that the petitioner is entitled to get exclusion of the period from 26.7.2004 till date in computing the period for filing an appeal against the order passed by the court below. The petitioner would be entitled to apply for exclusion of time and the court dealing with the same will consider the prayer for exclusion. 6. The learned counsel for respondents 2 and 3 submitted that on 22.6.2011 they filed an application in the Revision, stating C.R.P. NO.961 OF 2004 :: 4 :: that the Revision is not maintainable. It is submitted that the application is not yet numbered. The certified copy of the order in I.A.No.859 of 2003 shall be returned to the counsel for the petitioner after retaining a true copy of the same in the file. (K.T.SANKARAN) Judge ahz/