IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 28TH JANUARY 2011 / 8TH MAGHA 1932 OP(C).No. 373 of 2011(O) ------------------------ AGAINST THE ORDER DATED 13.12.2010 IN IA.709/2009 IN OS.84/2008 OF MUNSIFF-MAGISTRATE COURT, PAYYOLI .................... PETITIONER : ------------------ MEKKUNNANKANDI VELLIYOTT ABDULLA, S/O.SOOPI HAJI, RESIDING AT MURICHANDI, VILAYATTUR AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.T.P.KELU NAMBIAR, SENIOR ADVOCATE SRI.P.G.RAJAGOPALAN SRI.M.GOPIKRISHNAN NAMBIAR RESPONDENT(S): ------------------------ 1. MEKKUNNANKANDI VELLIYOTT IBRAYI, S/O.SOOPI HAJI, RESIDING AT PALAMADATHIL, IRINGATH AMSOM DESOM, P.O.IRINGATH, KOYILANDY TALUK, PIN-673 523, KOZHIKODE DISTRICT. 2. NETTIOTTUMMAL SANTHA, D/O.KUNHIKANNAN, RESIDING AT KANIYANKANDI, VILAYATTUR AMSOM DESOM, P.O.VILAYATTUR, PIN-673 523, KOYILANDY TALUK, KOZHIKODE DISTRICT. 3. NELLIOTTUMMAL GOPALAKRISHNAN, S/O.KUNHIKANNAN, RESIDING AT -DO- -DO- 4. NELLIOTTUMMAL KANCHANA, D/O.KUNHIKANNAN, RESIDING AT -DO- -DO- THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 28/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ----------------------------------- O.P.(Civil) No.373 of 2011 O ----------------------------------- Dated this the 28th day of January, 2011 JUDGMENT The first defendant in O.S.No.84 of 2008 on the file of the court of the Munsiff Magistrate of Payyoli challenges in this Original Petition the order dated 13th December 2010, in I.A.No.709 of 2009 by which the court below allowed the application for restoration of the suit under Rule 9 of Order 9 of the Code of Civil Procedure. 2. The suit is for fixation of boundary and for permanent prohibitory injunction. The plaintiff and the first defendant are brothers. The suit was listed for trial. On that day, the plaintiff filed an application for appointing a Commissioner. He also filed an application for removing the case from the special list. The case was adjourned to another date. On that day, the plaintiff and his counsel were absent. Therefore, the suit was dismissed for default. O.P.(Civil) No.373 of 2011 2 3. The plaintiff filed an application to restore the suit. He contended that on the date of posting of the case, he could not appear as one of his relatives passed away. His counsel had to attend a case in another station and therefore, the counsel also could not turn up. The court below did not fully believe the case put forward by the plaintiff. However, taking into account the relationship between the parties and also the nature of the suit and other circumstances, the court below thought that an opportunity should be afforded to the plaintiff to prosecute the suit on the merits. Accordingly, the application for restoration was allowed on costs of Rs.1,000/-. The court below exercised the discretion for the purpose of restoring the suit. It cannot be said that the discretion exercised by the court is illegal or without jurisdiction. No grounds are made out for interference under Article 227 of the Constitution of India. Accordingly, the Original Petition is dismissed. K.T.SANKARAN JUDGE csl