IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 12TH FEBRUARY 2009 / 23RD MAGHA 1930 CRP.No. 1042 of 2006() --------------------------------- AGAINST THE ORDER DATED 05/12/2005 IN IA.2503/05 IN OS.219/2004 of PRL.MUNSIFF COURT, KOCHI .................... REVN. PETITIONER(S): PETITIONER/PLAINTIFF -------------------------------- KOCHUTHRESIA, W/O.JOY, CHAKKATTI, NAYARAMBALAM MURI,NAYARAMBALAM VILLAGE, KOCHI TALUK. BY ADVS. MR.C.A.CHACKO SMT.C.M.CHARISMA MR.N.A.SHAFEEK RESPONDENT(S): DEFENDANT ------------------------ ABHILASH, S/O.SIVAN, KANNACHAZHATH, EDAVANAKKAD KARA, EDAVANAKKAD VILLAGE, KOCHI TALUK. ADV. SMT.P.V.KOCHUTHRESIA THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.N.Ravindran, J. ================== C.R.P. No.1042 of 2006 ===================== Dated this the 12th day of February, 2009. ORDER The plaintiff in O.S.No.219 of 2004 on the file of the Court of the Munsiff of Cochin is the revision petitioner. The respondent is the defendant therein. 2. The suit instituted by the petitioner is one for fixation of the boundaries of the plaint A schedule property and for a permanent prohibitory injunction restraining the defendant from making any construction in plaint B schedule property belonging to him, encroaching upon the plaint A schedule property. In the suit, the plaintiff was represented by Sri.Abraham Thomas, who is regularly practicing at North Paravur. The suit stood posted to 9.11.2005 for the evidence of the plaintiff. The plaintiff was not present on that day. The learned counsel appearing for the plaintiff was also not present, according to the plaintiff, for the reason that both of them were not aware of the posting of the case on 9.11.2005. When the clerk engaged by the plaintiff's counsel came to know that the suit was listed he had engaged another lawyer to seek an adjournment of the suit by two days. According to the petitioner, the learned Munsiff did not grant the said request and dismissed the suit for default on 9.11.2005. On 11.11.2005, the petitioner filed I.A.No.2503 of 2005 to restore the suit to file. The CRP 1042/06 -: 2 :- application was supported by an affidavit sworn to by the petitioner wherein it was stated that the plaintiff and her counsel were not aware of the posting of the suit on 9.11.2005, that on coming to know of the posting, the clerk engaged by the plaintiff's counsel had made arrangements to seek an adjournment by two days, that the said request was declined and thereupon the suit was dismissed for default. The court below ordered notice to the defendant on I.A.No.2503 of 2005. Though notice was served, the defendant did not appear. However, by order passed on 5.12.2005, the court below dismissed the application holding that no valid grounds have been made out to restore the suit. Hence this Civil Revision Petition. 3. In this Civil Revision Petition, the petitioner challenges the correctness of the order passed by the court below dismissing I.A.No.2503 of 2005. I have considered the submissions made at the Bar by Smt.C.M.Charisma, the learned counsel appearing for the petitioner. There was no representation for the respondent when the case was called on for hearing. In my opinion, as the defendant had not appeared and opposed I.A.No.2503 of 2005 and the application for restoration of the suit was filed within two days from the date on which it was dismissed for default, the court below ought to have allowed the application and restored the suit to file. The suit is one for fixation of boundaries and for a permanent prohibitory injunction restraining the defendant from making any construction in his property by encroaching into the CRP 1042/06 -: 3 :- plaintiff's property. In the nature of the dispute also, the court below ought to have, in my opinion, afforded the plaintiff an opportunity to have the dispute resolved on the merits. 4. In the result, I allow the Civil Revision Petition, set aside the order passed by the court below dismissing I.A.No.2503 of 2005 and restore the suit O.S.No.219 of 2004 to file. The court below shall take back the suit to file, issue notice to the defendant and try and dispose of the suit expeditiously. The plaintiff shall appear before the court below on 16.3.2009. P.N.Ravindran, Judge. ess 16/2