IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 9TH OCTOBER 2009 / 17TH ASWINA 1931 WP(C).No. 4987 of 2009(R) ------------------------------------- CMA.NO.37/2008 OF ADDL. DISTRICT COURT, N.PARAVUR, OS.NO.389/1997 OF MUNSIFF COURT,ALUVA. .................... PETITIONER: ------------------- VARKEY, AGE 75 YEARS, S/O.DEVASSY, CHIRAMEL HOUSE, VADAKKUMBHAGAM KARA, AYYAMPUZHA VILLAGE, ALUVA TALUK. BY ADV. DR.GEORGE ABRAHAM. RESPONDENTS: ------------------------ 1. VALLY, AGE 73 YEARS, W/O.LATE PANKI, ALAPPATTUKOOTTAM, VADAKKUMBHAGAM KARA, AYYAMPUZHA VILLAGE, ALUVA TALUK. 2. SUKUMARAN, S/O.LATE PANKI, ALAPPATTUKOOTTAM, VADAKKUMBHAGAM KARA, AYYAMPUZHA VILLAGE, ALUVA TALUK. 3. CHANDRAN, S/O. LATE PANKI, ALAPPATTUKOOTTAM, VADAKKUMBHAGAM KARA, AYYAMPUZHA VILLAGE, ALUVA TALUK. 4. AYYAPPAN, S/O. LATE PANKI, ALAPPATTUKOOTTAM, VADAKKUMBHAGAM KARA, AYYAMPUZHA VILLAGE, ALUVA TALUK. 5. SANTHA, W/O.THANKAPPAN, THEKKIRIYIL, KALAMASSERY KARA, KALAMASSERY NORTH, THRIKKAKARA VILLAGE. 6. VELAYUDHAN, S/O. LATE PANKI, ALAPPATTUKOOTTAM, VADAKKUMBHAGAM KARA, AYYAMPUZHA VILLAGE, ALUVA TALUK. BY ADV. MR.VINEETH KURIAKOSE. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/10/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.4987/2009-R: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE REGISTERED DEED OF SALE DTD. 27/09/1979 EXECUTED BY LATE PANKI IN FAVOUR OF THE PETITIONER. EXT.P.2: COPY OF THE ORDER DTD. 13/02/1998 OF THE COURT OF MUNSIFF, ALUVA IN O.S. 389/97. EXT.P.3: COPY OF THE I.A. NO. 2194/07 IN O.S. 389/97. EXT.P.4: COPY OF THE ORDER DTD. 28/07/2008 OF THE COURT OF THE MUNSIFF, ALUVA IN I.A. NO. 2192/97 IN O.S. 389/97. EXT.P.5: COPY OF THE ORDER DTD. 28/07/2008 OF THE COURT OF THE MUNSIFF, ALUVA IN I.A. NO. 2193/97 IN O.S. 389/97. EXT.P.6: COPY OF THE ORDER DTD. 28/07/2008 OF THE COURT OF THE MUNSIFF, ALUVA IN I.A. NO. 2195/07 IN O.S. 389/97. EXT.P.7: COPY OF THE ORDER DTD. 25/11/2008 OF THE COURT OF THE ADDITIONAL DISTRICT JUDGE, N. PARAVUR IN C.M.A. NO. 37/2008. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.4987 of 2009 - R --------------------------------- Dated this the 9th day of October, 2009 J U D G M E N T Writ petition is filed seeking the following reliefs: “i) To issue a writ of certiorari or any other appropriate writ, order or direction to quash Exhibits P7 order. ii) To declare that the respondents have not produced sufficient reason to condone the delay of 3463 days and hence the order passed by the Honourable Munsiff Court, Aluva is legal and valid.” 2. Petitioner is the defendant in O.S.No.389 of 1997 on the file of the Munsiff Court, Aluva. Suit filed by the predecessor of the respondents was dismissed for default. Suit was filed by the predecessor of the respondents impeaching a registered deed by which a transfer of property assigned in his name was made in favour of the petitioner. Transfer was challenged as vitiated by fraud and also flouting the mandatory provisions of the Kerala Scheduled Tribes (Restriction on Transfer of Lands and Restoration of Alienated Lands) Act, 1975 (The above Act has been repealed by Act 12 of 999). Suit was dismissed for default on 13.2.1998. Nearly about 10 years later, the present W.P.(C).No.4987 of 2009 - R 2 respondents moved an application for restoring the suit filing an application under Order IX Rule 9 of the Code of Civil Procedure with a petition to condone delay of 3373 days. The application was opposed to by the petitioner/defendant in the suit. Learned Munsiff after conducting enquiry over the delay petition finding that no sufficient cause had been made out for restoring the suit after such inordinate delay, dismissed that application. Propriety and correctness of that order was challenged in appeal by the respondents before the Additional District Court, North Paravoor. Learned District Judge, after hearing both sides, passed Ext.P7 judgment setting aside the dismissal of the application for condoning delay allowed that application and directed consideration of the restoration application. Ext.P7 judgment is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. 4. It is not disputed that after the dismissal of the suit the original plaintiff, the predecessor of the respondents, did not take any steps for restoration of the suit. He passed away nearly W.P.(C).No.4987 of 2009 - R 3 1½ years later, after the dismissal of the suit. The restoration application was applied for by the children of the original plaintiff, nearly, ten years after the suit was dismissed. Learned counsel for the respondents submitted before me that there was a parallel criminal proceedings as well in respect of the transfer of the land made in favour of the present petitioner and that ended in conviction of the petitioner by the criminal court. So, the children of the original plaintiff, even after the dismissal of the suit, were under the impression that the legal proceedings have ended in their favour and, so much so, there was delay in moving the application for restoration of the suit dismissed for default. Whatever be the impression formed by the children of the original plaintiff in examining the question whether the suit dismissed for default has to be restored to file, the court is expected to examine whether they have made out sufficient cause for such restoration of the suit, and if there is delay reasonable explanation for condoning such delay. After long lapse of time of nearly 10 years when the opposite party prosecuted on the criminal side as well is sought to be proceeded again by restoring the suit which had been dismissed for default, the substantial W.P.(C).No.4987 of 2009 - R 4 injury that is likely to be caused to him also deserve to be appreciated and taken note of by the court in judging the sufficient cause, if any, made out by the parties seeking the restoration of the suit. I find that other than adverting to some general guiding principles laid down in the decisions of the apex Court as well as this Court, learned Additional District Judge has not examined the merit of the case canvassed by the respondents for condoning the delay in moving the application for restoring the suit dismissed for default so as to unsettle the finding arrived by the learned Munsiff holding that the respondents have not made out sufficient cause for condoning the delay. Learned Munsiff after examining the materials produced appreciating the facts and circumstances involved had reached a conclusion that no cause leave alone sufficient cause was made out by the respondents/petitioners to condone delay. No interference with the finding so formed by the learned Munsiff is permissible unless it is shown that the reasoning thereof is erroneous or unsustainable under law or on facts. Ext.P7 judgment does not disclose any ground for interfering with the finding so arrived by the learned counsel. I find Ext.P7 judgment is unsustainable and W.P.(C).No.4987 of 2009 - R 5 it is liable to be set aside, and it is ordered accordingly. The order passed by the learned Munsiff holding that the respondents have not made out sufficient cause for condoning delay for restoration of the suit is restored. Writ petition is disposed of as above. S.S.SATHEESACHANDRAN, JUDGE. bkn/-