IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 6TH OCTOBER 2010 / 14TH ASWINA 1932 OP(C).No. 190 of 2010(O) ------------------------ AGAINST THE ORDER DATED 30/06/2010 IN IA.8700/2009 IN LAR.133/2009 of III ADDL.SUB COURT, ERNAKULAM .................... PETITIONER(S): -------------------- 1. KAUSALYA, AGED 79 YEARS,W/O.KUNJAN, KOLLODIYIL, THIRUVANKULAM, ERNAKULAM DISTIRCT. 2. K.K.PRABHAVATHY, AGED 59 YEARS, D/O.LATE KUNJAN, KOLLODIYIL, THIRUVANKULAM, ERNAKULAM DISTIRCT. 3. K.K.GIRIJA, AGED 55 YEARS, D/O.LATE KUNJAN , KOLLODIYIL,THIRUVANKULAM, ERNAKULAM DISTIRCT. 4. K.K.ANIRUDHAN, AGED 57 YEARS, S/O.LATE KUNJAN, KOLLODIYIL,THIRUVANKULAM, ERNAKULAM DISTIR CT. 5. K.K.RAJENDRAN,AGED 51 YEARS, S/O.LATE KUNJAN, KOLLODIYIL,THIRUVANKULAM, ERNAKULAM DISTIR CT. BY ADV. SRI.ASWIN GOPAKUMAR RESPONDENT(S): --------------- STATE OF KERALA REPRESENTED BY THE GOVERNMENT PLEADER, DISTRICT COURT,ERNAKULAM. BY GOVT. PLEADER SHRI B.JAYASURYA THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 06/10/2010, ALONG WITH OP(C) NO.195/2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) Nos.190 of 2010 & 195 of 2010 -------------------------------------- Dated this the 6th day of October, 2010. JUDGMENT Learned Government Pleader takes notice for the respondent. Heard learned counsel for petitioners and learned Government Pleader. 2. These Original Petitions arise from the dismissal of applications for restoration of Land Acquisition Reference Cases dismissed for “default”. L.A.R. Nos.133 of 2009, 118 of 2009 and 119 of 2009 respectively involved in these petitions and pending in the Court of learned Additional Sub Judge-III, Ernakulam were dismissed for “default”. Thereon petitioners filed I.A.Nos.8700 of 2009, 8702 of 2009 and 8710 of 2009 respectively under Order IX Rule 9 of the Code of Civil Procedure (for short, “the Code”) to set aside the dismissal of the reference cases. Those applications were allowed on condition of payment of cost of Rs.3,500/- each within the time prescribed. Petitioners did not comply with the said condition and hence I.A.Nos.8700 of 2009, 8702 of 2009 and 8710 of 2009 were dismissed as per orders dated 30.06.2010. Those orders are under challenge in these petitions. Learned counsel for petitioners contend that learned Sub Judge was not correct in dismissing the reference cases for default since there is no provision for dismissal for default and once reference is taken OP(C) Nos.190 & 195/2010 2 on file, it has to be answered one way or the other. It is also contended by learned counsel that learned Sub Judge was not correct in imposing cost and at any rate cost imposed is excessive. 3. No doubt, in Khazan Singh (dead) by L.Rs. v. Union of India (AIR 2002 SC 276) the Apex Court has held that a dismissal of reference case for default even for the reason of non-participation of claimant when the matter is taken up is not warranted under the provisions of Land Acquisition Act and that once the reference is made, Sections 18, 20 and 26 of the said Act make it abundantly clear that the reference court has to pass an award in answer to the reference made by the Collector. If any party to whom notice was served by the civil court did not participate in the enquiry, it would only be at his risk because the award would be passed perhaps to the detriment of the party concerned. In these cases learned Sub Judge has chosen to dismiss the reference cases for default. Obviously that was not in accordance with the direction contained in the decision of the Supreme Court referred to above. 4. Now I am at the question whether the impugned orders are justified. May be it was open to the petitioners treating dismissal of reference cases for default as one on merit to prefer appeals under Section 54 of the Act. But they have not chosen to do so. Instead they have chosen to file applications before the learned Sub Judge under Order IX Rule 9 of the Code OP(C) Nos.190 & 195/2010 3 accepting the fact that the reference cases were dismissed for default with or without jurisdiction. It is not as if in such a situation an application under Order IX Rule 9 of the Code though read with Section 151 of that Code is not permissible. Supreme Court in Rajmani v. Collector, Raipur [(1996) 5 SCC 701] has stated that in such situations, an application under Order IX Rule 9 read with Section 151 of the Code is maintainable. Now petitioners having chosen to take recourse to that remedy they cannot turn around and contend that dismissal for default is wrong and hence, learned Sub Judge was bound to take the reference cases on file whatever be the reason for absence of petitioners when the cases were taken up for hearing. 5. Then the next question is whether the statutory remedy of appeal under Order XLIII Rule 1(c) of the Code is available to the petitioner. A Division Bench of this Court in Pathummal v. State of Kerala (ILR 1974 (2) Kerala 30) has taken the view that when an application under Order IX Rule 9 of the Code meant for restoration of a reference case dismissed for default by itself is dismissed, it carries the right to prefer an appeal under Order XLIII Rule 1(c) of the Code. But it is thereafter that the Supreme Court in Rajmani v. Collector, Raipur has held that the appropriate provision applicable would be Order IX Rule 9 read with Section 151 of the Code. In the light of the decision in Rajmani v. Collector, Raipur referred supra I am inclined to entertain these petitions. OP(C) Nos.190 & 195/2010 4 6. Then the question is whether learned Sub Judge was right in dismissing the application for non-payment of cost as ordered within the prescribed time and whether the cost ordered is excessive. The cost ordered is Rs.3,500/- each. Admittedly, that amount was not deposited within the prescribed time. Taking note of circumstances urged by the petitioners learned Sub Judge was inclined to allow the application for restoration but, on terms of cost. Minor laches are to be cured by common curative of cost. Largely it is a matter within the discretion of court whether in a particular case cost has to be awarded and if so what should be the quantum. It is only when the discretion is exercised in a capricious, perverse or arbitrary manner that interference by High Court under Article 227 of the Constitution is required. I do not find reason to interfere with the order of learned Sub Judge allowing the applications on terms of cost. 7. So far as the amount of cost awarded is concerned, learned counsel for petitioners submit that it is in respect of the very same property acquired that the respective title holders requested reference and accordingly the reference was made and registered. Learned counsel states that the family as a whole has therefore to deposit a total sum of Rs.10,500/-. Having regard to the fact, I am inclined to think that the cost can be modified as Rs.2,500/- each (in each case). Petitioners can be granted one month’s time to deposit the amount in the court of learned Sub Judge. Resultantly these petitions are disposed of in the following lines: OP(C) Nos.190 & 195/2010 5 i. O.P (C).Nos.190 of 2010 and 195 of 2010 will stand allowed and the orders under challenge on I.A.No.8700 of 2009, 8702 of 2009 and 8710 of 2009 respectively in L.A.R.Nos.133 of 2009, 118 of 2009 and 119 of 2009 of the court of learned Additional Sub Judge-III, Ernakulam will stand set aside and those applications will stand allowed and the dismissal of reference cases set aside on condition that petitioners deposited Rs.2,500/- each (in each case) in the court of learned Additional Sub Judge-III within one month from this day. ii. It is directed that in case the above condition is not complied Original Petitions will stand dismissed in conformation of the orders under challenge. iii. On such deposit as above stated, learned Additional Sub Judge-III, Ernakulam shall restore the reference cases to file and dispose of the same as provided under law after giving opportunity to both sides to adduce evidence. THOMAS P.JOSEPH, Judge. cks