IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 22ND MAY 2009 / 1ST JYAISHTA 1931 WP(C).No. 2410 of 2009(J) ------------------------- CMA.7/2007 of SUB COURT, TIRUR OS.284/2001 of MUNSIFF COURT, TIRUR .................... PETITIONER(S): --------------- KOONATHIL KUMARAN, S/O.KARI @ APPUKUTTY, 56 YEARS, THALAKKAD AMSOM DESOM, TIRUR TALUK. BY ADV. SRI.K.K.MOHAMED RAVUF RESPONDENT(S): --------------- 1. CHINAPARAMBIL ALEEMA, @ KUNHIMA, W/O.RAMANALIKUNNATH BAVA, THALAKKAD AMSOM DESOM, TIRUR TALUK. 2. MUNDUVALAPPIL KUNHIPPA @ MOHAMMED, S/O.BACKER, CHAMMARAVATTOM, TIRUR TALUK. 3. RAMANALILKUNNATH FATHIMMA, D/O.BAVA, THALAKKAD AMSOM DESOM, TIRUR TALUK. 4. RAMANALILKUNNATH SAINABA, W/O.KUNHIPPA @ MOHAMMED, CHAMMARAVATTOM, TIRUR TALUK. 5. CHEENIPARAMBIL KUNHIPPA, S/O.BEERAN, NORTH B.P.ANGADI, TIRUR TALUK. ADV. SRI.K.RAMACHANDRAN FOR R1-5 SRI.S.SREEDEV FOR R1-5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.2410/09 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE COMMISSION REPORT. EXT.P2: COPY OF THE APPLICATION I.A.NO.2400 OF 2006. EXT.P3: COPY OF THE OBJECTION FILED BY RESPONDENTS. EXT.P4: COPY OF THE ORDER DATED 14.6.2007 IN I.A.NO.2400 OF 2006. EXT.P5: COPY OF THE ORDER IN C.M.A.NO.17 OF 2007. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.2410 OF 2009 (J) ----------------------------------- Dated this the 22nd day of May, 2009 J U D G M E N T This writ petition is filed under Article 227 of the Constitution of India seeking the following reliefs:- i. to issue a writ of certiorari or any other appropriate writ, order or direction quashing Ext.P5 order. ii. to allow Ext.P2 application and restore the suit O.S.No.284 of 2001 of the Munsiff Court, Tirur, and direct the learned Munsiff to hear and dispose of the same on merits. iii. to grant such other reliefs as may be prayed for and which this Honourable Court may deem fit and proper to grant in the circumstances of the case. Petitioner is the plaintiff in O.S.No.284/2001 on the file of the Munsiff Court, Tirur. Suit was dismissed for default. An application moved by the petitioner under Order IX Rule 9 of WPC.2410/09 2 CPC, after enquiry, was dismissed by the learned Munsiff as the materials tendered by the petitioner was found not satisfactory to hold that he had sufficient cause for non appearance, when the suit was posted in the special list for trial. Appeal preferred by the petitioner against the order of the learned Munsiff was also unsuccessful as the learned Sub Judge concurred with the conclusion reached by the learned Munsiff. The petitioner, has, therefore, filed this writ petition seeking the indulgence of this Court to have a decision on his suit on merits. 2. I heard the learned counsel for the petitioner and also, for the respondents/defendants in the suit. The application for restoration of the suit was filed within time and the reasons found by the learned Munsiff and also the learned Sub Judge to conclude that the petitioner had not shown sufficient cause for his non appearance are not correct, is the submission of the counsel for the petitioner. The application was dismissed forming a conclusion that the petitioner had not shown sufficient cause since evidence of PW2, the doctor, who issued the certificate and treated the petitioner, was found not credible and convincing to the court, submits the WPC.2410/09 3 counsel. It is further submitted that PW2 practices traditional indigenous medicine and his educational qualification should not have been given much weight in appreciating his evidence. At any rate, the evidence of PW1 showing the cause for his absence should have been accepted to restore the suit to file, is the submission of his counsel. Stoutly resisting the reliefs claimed in the petition, learned counsel for the respondents contended that there is no merit in the cause pleaded, and, in fact, the materials tendered was rightly and correctly found by the trial Judge and also the Sub Judge, not sufficient to form the conclusion that the petitioner/plaintiff had reasonable excuse for his absence. True, the materials tendered by the petitioner was deficient, but, in examining the question whether the petitioner has sufficient cause for his absence, what is to be looked into is whether there were culpable laches or negligence for his non appearance. Even if there are some laches or negligence, that should not to be given much weightage because the courts as instrumentalities of justice are expected to enter decision on merits as far as possible, and not without hearing the opposite party. Having regard to the submissions made and taking note of the facts and circumstances involved and also that the suit instituted in WPC.2410/09 4 the year 2001 is sought to be restored to file, I am of the view that one more opportunity can be extended to the plaintiff subject to terms compensating the injuries likely to be caused to the respondents. So much so, it is ordered that the suit shall stand restored to file, on condition of petitioner/plaintiff paying a sum of Rs.5,000/- to the respondents, within one month from the date of receipt of a copy of this judgment. Sum fixed above shall be paid to the counsel for the respondents within the time stipulated. If payment is not made within the time ordered, the writ petition shall stand dismissed without any further orders. For report on payment, post after one month. Petition is disposed accordingly. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO. OF 2006 () --------------------------------------------------------- O R D E R --------------------------------------------------------- 23rd March, 2009