IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 14TH DECEMBER 2010 / 23RD AGRAHAYANA 1932 OP(C).No. 1132 of 2010(O) ------------------------- IA NOS.4727/2010 AND 4728/2010 IN OS.221/2008 of MUNSIFF COURT,NEDUMANGAD .................... PETITIONER ------------------------------ S.DEVADANAM, S/O.SATHYANESAN, KIZHAKKEKONATHU VARUVILAKATHU VEEDU, VATTAPPARA.P.O., NEDUMANGAD, THIRUVANANTHAPURAM-695 028. BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENT(S): --------------- 1. MR.THANKAPPAN PILLAI, RAJEEV VILASOM, VATTAPPARA.P.O., NEDUMANGAD, THIRUVANANTHAPURAM-695 028. 2. MR.SURENDRAN, KIZHAKKEKONATHU HOUSE, VATTAPPARA.P.O., NEDUMANGAD, THIRUVANANTHAPURAM-695 028. 3. MR.VENU, S/O.BHASKARAPILLAI, KIZHAKKEKONATHU HOUSE, VATTAPPARA.P.O., NEDUMANGAD, THIRUVANANTHAPURAM-695 028. 4. MR.ANEESH, S/O.SURENDRAN, KIZHAKKEKONATHU HOUSE, VATTAPPARA.P.O., NEDUMANGAD, THIRUVANANTHAPURAM-695 028. 5. MR.T.RAJEEV, KIZHAKKEKONATHU HOUSE, VATTAPPARA.P.O., NEDUMANGAD, THIRUVANANTHAPURAM-695 028. 6. MR.SHAJI, S/O.KRISHNAN, RODARIKATHU VEEDU, VEMBAYAM.P.O., THIRUVANANTHAPURAM-695 028. OP(C) NO.1132/2010 2 7. MRS.LALITHAMMA, W/O.BALAKRISHNA PILLAI, KIZHAKKEKONATHU HOUSE, VATTAPPARA.P.O., NEDUMANGAD, THIRUVANANTHAPURAM-695 028. 8. MR.BIJOY, S/O.BALAKRISHNA PILLAI, KIZHAKKEKONATHU HOUSE, VATTAPPARA.P.O., NEDUMANGAD, THIRUVANANTHAPURAM-695 028. 9. MR.GIRISH, S/O.BALAKRISHNA PILLAI, KIZHAKKEKONATHU HOUSE, VATTAPPARA.P.O., NEDUMANGAD, THIRUVANANTHAPURAM-695 028. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 14/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.1132 of 2010 -------------------------------------- Dated this the 14th day of December, 2010. JUDGMENT Plaintiff in O.S.No.221 of 2008 of the court of learned Munsiff, Nedumangad is the petitioner before me. He sued for injunction to restrain respondents from trespassing into the suit property. Respondents filed written statement with a counter claim. When the case came up for trial in the list, on account of absence of petitioner suit was dismissed for default and on the counter claim he was set exparte. The counter claim is posted for evidence to this day. Hence this petition. 2. The proper remedy available to the petitioner is to seek restoration of the suit and set aside the exparte order on the counter claim. Learned counsel for petitioner submits that an application for restoration of the suit has already been filed. Counsel was not able to confirm whether any application to set aside the exparte order on the counter claim has been filed. It is submitted that application to appoint an Advocate Commissioner to measure the property was also dismissed by the learned Munsiff consequent to the dismissal of the suit. That application can be considered if only the suit is restored to file and the exparte order on the counter claim is set aside. 3. Since the suit was dismissed for default and petitioner has been set exparte on the counter claim and as I stated that proper remedy is to move the OP(C) No.1132/2010 2 trial court for appropriate relief it is not necessary for me to go into the correctness of the order dismissing I.A.Nos.4727 of 2010 and 4728 of 2010 . It is open to the petitioner to pursue his remedy in the trial court. However since learned counsel was not able to confirm whether application to set aside the exparte order on the counter claim is already filed, it is directed that learned Munsiff shall pass orders on the counter claim only after a week from this day so that if so advised petitioner could move appropriate application to set aside the exparte order on the counter claim. I make it clear that it will be open to the petitioner to challenge the correctness of order on I.A.Nos.4727 of 2010 and 4728 of 2010 in case the suit is restored to file and the exparte order on counter claim is set aside. With the above observations this petition is closed. THOMAS P.JOSEPH, Judge. cks