IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 29TH JANUARY 2008 / 9TH MAGHA 1929 CRP.No. 2617 of 2001 ---------------------- ( CMA.2/1999 of SUB COURT, OTTAPPALAM I.A.No. 1769 of 1998 in OS.342/1993 of MUNSIFF COURT, OTTAPPALAM ) REVN. PETITIONER/APPELLANT/PETITIONER/PLAINTIFF: ---------------------------------------------------------------------------------- MOIDEENKUTTY, , S/O. VATTAPARAMBIL KUNHIMOIDU, RESIDING AT KURUVATTUR AMSOM AND DESOM, OTTAPPALAM TALUK, PALAKKAD DISTRICT. BY ADV. SRI.SANTHEEP ANKARATH RESPONDENTS/RESPONDENTS/RESPONDENTS/DEFENDANTS: ---------------------------------------------------------------------------------------------- 1. VEERAN, S/O. VATTAPARAMBIL KUNHIMOIDU, KURUVATTUR AMSOM AND DESOM, OTTAPALAM TALUK. 2. CHEKU, S/O. -DO- -DO- 3. YOUSUF, S/O. -DO- -DO- 4. KAMALADEVI, W/O. KADAMKATTIL SANKARAN EZHUTHASSAN, KANNIYAMPURAM AMSOM, THOTTAKARA DESOM, OTTAPPALAM TALUK. BY ADV. SRI.V.CHITAMBARESH ADV. SRI.SHAMIER MARICKAR THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T. SANKARAN, J. ................................................................................... C.R.P. No. 2617 OF 2001 ................................................................................... Dated this the 29th January, 2008 O R D E R The revision petitioner filed O.S.No. 342 of 1993 on the file of the court of the Munsiff, Ottappalam against the respondents for a declaration that the decree in O.S. No. 56 of 1985 on the file of the Sub Court, Ottappalam is not binding on the plaintiff or plaint schedule property. There was also a prayer for consequential injunction. When the suit was listed for trial on 18.08.1998, the revision petitioner failed to appear. The suit was dismissed for default. I.A.No. 1769 of 1998 was filed by the revision petitioner under Rule 9 Order IX of the Code of Civil Procedure. That application was posted on 14.12.1998. On the ground that the petitioner was not ready and that he was absent, I.A.No. 1769 of 1998 was dismissed by the order dated 14.12.1998. The revision petitioner filed C.M.A.No. 2 of 1999 before the Sub Court, Ottappalam challenging the order of the trial court. The appellate court dismissed the appeal. 2. The appellate court considered the question as to whether the petitioner was prevented by sufficient cause from appearing in the court on 18.08.1998 and held that the case put forward by the petitioner does not appear to be true . 3. The learned counsel for the revision petitioner submitted that the courts below should have granted an opportunity to the petitioner to prosecute the suit on the merits. The learned counsel for the 4th respondent submitted that there is no scope for allowing the petitioner to prosecute the suit or to prosecute the application for restoration of the suit in view of subsequent developments. He submitted that the 4th respondent filed O.S.No. 58 of 2000 on the file of the court of the Munsiff, Ottappalam for a permanent C.R.P. No. 2617 OF 2001 2 prohibitory injunction against the plaintiff and defendant Nos. 1 to 3. The first respondent herein, viz., Veeran had filed O.S.No. 89 of 2000 before the Munsiff's Court, Ottappalam for a declaration that the decree in O.S.No. 56 of 1985 on the file of the Sub Court, Ottappalam is not binding on him. It is submitted that O.S.Nos. 58 of 2000 and 89 of 2000 were tried together and were disposed of by a common judgment. dated 19.07.2004, by which the suit filed by the 4th respondent was decreed and the suit filed by the first respondent was dismissed. It is also submitted by the learned counsel for the 4th respondent that the revision petitioner was a party in O.S.No. 58 of 2000 and 89 of 2000. The learned counsel for the 4th respondent also submitted that the revision petitioner had filed O.S.No. 132 of 1993 on the file of the Munsiff's Court, Ottappalam for partition of the present plaint schedule property. O.S.No. 132 of 1993 was dismissed for default on 18.08.1998 and that decision has become final. The learned counsel for the 4th respondent submitted that in the light of subsequent developments no useful purpose would be served by restoration of the present suit, viz. O.S.No. 342 of 1993. The learned counsel also pointed out that O.S.No. 342 of 1993 was filed before the Munsiff's Court, while the decree in respect of which the declaration was sought, was passed by the Sub Court and therefore, the suit is hit by Section 41(b) of the Specific Relief Act . 4. It is not necessary to decide the aforesaid contentions in this revision. I am of the view that an opportunity could be granted to the petitioner to prosecute I.A.No. 1769 of 1998. Granting of such an opportunity is not unconditional. The petitioner has to pay a sum of Rs. 1500/- (Rupees one thousand and five hundred only) as cost to the 4th respondent within a period of one month from today. If he fails to pay the cost, the Civil Revision Petition will stand dismissed. C.R.P. No. 2617 OF 2001 3 For the aforesaid reasons, the order dated 14th December, 1998 passed by the trial court and the judgment dated 22nd May, 2001 passed by the lower appellate court are set aside. I.A.No. 1769 of 1998 is restored to file on condition that the petitioner shall pay a sum of Rs. 1500/- as cost to the 4th respondent within a period of one month from today. On payment of the cost, the trial court shall dispose of I.A.No. 1769 of 1998 on the merits. It is made clear that the 4th respondent would be entitled to raise all the contentions, which are referred to above, before the trial court. K.T. SANKARAN, JUDGE. lk C.R.P. No. 2617 OF 2001 4 K.T. SANKARAN, J. ........................................................ C.R.P. No. 2617 OF 2001 ......................................................... Dated this the 29th January, 2008 O R D E R