IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 26TH JULY 2011 / 4TH SRAVANA 1933 OP(C).No. 2397 of 2011(O) --------------------------------------- AGAINST THE ORDER DATED 11/04/2011 IN CMA.NO.29/2009 AND CMA.NO.30/2009 OF DISTRICT COURT, KOZHIKODE OS.311/2006 of PRINCIPAL MUNSIFF'S COURT-1, KOZHIKODE (EP 89/2008) .................... PTITIONERS -------------------- 1. K.T.CHANDUKUTTY,AGED 78 YEARS, S/O.CHATHU,KOLODI THEKKEYIL,ELATHUR AMSOM DESOM, KOZHIKODE TALUK. 2. K.T.ANEESH,AGED 42 YEARS, S/O.K.T.CHANDUKUTTY,KOLODI THEKKEYIL, ELATHUR AMSOM DESOM,KOZHIKODE TALUK. BY ADVS. SRI.A.BALAGOPALAN SRI.A.RAJAGOPALAN SRI.M.N.MANMADAN SRI.M.S.IMTHIYAZ AHAMMED SRI.K.SANEESH KUMAR RESPONDENT(S): -------------------------- 1. PARAMBATH SURENDRAN,AGED 49 YEARS, S/O.KUMARAN,ELATHUR AMSOM DESOM, KOZHIKODE TALUK.PIN-673 283 2. MALIANDI MANOJ,AGED 42 YEARS, S/O.CHANTHAN,PANNIKKOTTOOR AMSOM DESOM, KOZHIKODE TALUK,REPRESENTED BY POWER OF ATTORNEY HOLDER,PARAMBATH SURENDRAN.PIN-673 283 BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 26/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts OP(C).NO.2397/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE PLAINT IN O.S.NO.311/2006 ON THE FILE OF THE PRINCIPAL MUNSIFF-1, KOZHIKODE. P2 COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONERS IN O.S.NO.311/2006. P3 COPY OF THE ORDER IN I.A.NO.2053/2006 IN O.S.NO.311/2006 DATED 22/6/2006. P4 COPY OF THE JUDGMENT PASSED BY THE PRINCIPAL MUNSIFF-1, KOZHIKODE IN O.S.NO.311/2006 DATED 13/12/2007. P5 COPY OF THE E.P.NO.89/2008 IN O.S.NO.311/2006 DATED 18/3/2008 TOGETHER WITH THE B DIARY PROCEEDINGS. P6 COPY OF THE AMIN WARRANT AND THE REPORT OF THE AMIN EVIDENCING DELIVERY OF THE BUILDING. P7 COPY OF THE I.A.NO.2945/2008 IN O.S.NO.311/2006 DATED 8/8/2008. P8 COPY OF THE I.A.NO.2947/2008 IN O.S.NO.311/2006 DATED 8/8/2008. P9 COPY OF THE I.A.NO.2946/2008 IN O.S.NO.311/2006 DATED 8/8/2008. P10 COPY OF THE OBJECTION DATED 30/08/2008 FILED BY THE PETITIONERS IN EXHIBIT P8 APPLICATION. P11 COPY OF THE OBJECTION DATED 30/8/2008 FILED BY THE PETITIONERS IN EXHIBIT P9 APPLICATION. P12 COPY OF THE ORDER PASSED IN I.A.NO.2945/2008 IN O.S.NO.311/2006 DATED 18/3/2009. P13 COPY OF THE ORDER PASSED IN I.A.NO.2947/2008 IN O.S.NO.311/2006 DATED 18/3/2009. P14 COPY OF THE COMMON JUDGMENT PASSED BY THE DISTRICT COURT, KOZHIKODE IN C.M.A.NOS.29/2009 AND 30/2009 DATED 11/4/2011. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.2397 of 2011 --------------------------------------- Dated this 26th day of July, 2011 JUDGMENT Petitioners are defendants in O.S.No.311 of 2006 of the Court of learned Principal Munsiff-I, Kozhikode. That is a suit for injunction filed by the respondents to restrain petitioners trespassing into the shop rooms. Petitioners filed written statement and counter claim. By Ext.P4, the suit was dismissed for default on 13.12.2007 and the counter claim was decreed. Petitioners filed Ext.P5, execution petition. In the execution proceeding also respondent remained absent. It is contended that the Amin appointed by the Court delivered the shop rooms on 20.08.2008 and they have let out the shop rooms to third parties who are now in possession and enjoyment of the said shop rooms. While so, respondent filed Exts.P7 to P9 on 08.08.2008 for restoration of the suit, setting aside the decree on the counter claim and to condone the delay of 205 days in filing the said applications. Respondent remained absent on those applications and thereon by Exts.P12 and P13 the said applications were dismissed. Those orders were challenged in C.M.A.Nos.29 and 30 of 2009 before the learned District Judge, Kozhikode. Learned O.P(C).No.2397 of 2011 -: 2 :- District Judge by Ext.P14, common judgment allowed the appeal and remanded Exts.P7 to P9 to the trial court for fresh decision. Learned District Judge has observed that even though respondents were absent on Exts.P7 to P9, applications on the relevant day, the trial court was required to decide the applications on merit based on the affidavits of the parties. It is contended by learned counsel that the said observation of the learned District Judge is not correct and that when respondents and counsel were absent the appropriate course open to the learned Munsiff was only to dismiss Exts.P7 to P9, applications for default. It is also submitted that respondents ceased to have any interest in the subject matter and that certain persons behind them are causing obstruction to the possession of the shop rooms by the tenants of petitioners. 2. I need not go into the question whether learned District Judge was correct in making the impugned observations. The ultimate order is one of remand enabling respondents to prosecute Exts.P7 to P9, applications. The maintainability of the C.M appeals cannot be disputed even though Exts.P7 to P9, applications were dismissed for default in view of the decision in Lakshmikutty Panickathi Vs. Bhargavi Panickathi (1987(2) O.P(C).No.2397 of 2011 -: 3 :- KLT 562). Since learned District Judge has given an opportunity to the respondents to prosecute Exts.P7 to P9, applications I do not find reason to interfere with the ultimate order. 3. But other grievance of petitioners has to be looked into. It is seen that Exts.P7 to P9, applications were preferred on 08.08.2008 and almost three years have elapsed since then. In the meantime according to the petitioners the decree on the counter claim was executed and they got possession of the shop rooms which they have entrusted to third parties on rental arrangement. In the circumstance, it is only appropriate that learned Munsiff disposed of Exts.P7 to P9, applications as early as possible. However, I am not fixing any time limit for disposal without knowing the pendancy of cases in that Court. Resultantly this original petition is disposed of directing learned Principal Munsiff-I, Kozhikode to dispose of Exts.P7 to P9, applications as expeditiously as possible having regard to the grievance of petitioners. Sd/- (THOMAS P JOSEPH, JUDGE) Sbna/- O.P(C).No.2397 of 2011 -: 4 :-