IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 10TH APRIL 2008 / 21ST CHAITHRA 1930 CRP.No. 358 of 2008() --------------------- CMA.127/2005 of DISTRICT COURT, PALAKKAD OS.15/1997 of SUB COURT, OTTAPPALAM (IA 320/2005) .................... REVN. PETITIONER: APPELLANT/PETITIONER -------------------------------------- P.K.MOHANDAS, S/O.PATHINETTAMKANDATHIL ACHUTHAN VAIDYAR, KOPPAM AMSOM AND DESOM, SULTANPET, PALAKKAD TOWN AND DISTRICT. BY ADV. SMT.K.GIRIJA RESPONDENTS: ------------- 1. STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECOR, PALAKKAD. 2. THE SECRETARY, LAND BOARD, THIRUVANANTHAPURAM. 3. THE CHAIRMAN, TALUK LAND BOARD, MANNARKKAD. 4. THE TAHSILDAR, MANNARKKAD. 5. VILLAGE OFFICER, KARAKURUSSI. BY GOVT. PLEADER SMT. R.BINDU THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/04/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- C.R.P. NO. 358 OF 2008 --------------------- Dated this the 10th day of April, 2008 ORDER This civil revision petition is preferred against the order of the District Judge, Palakkad, in CMA 127/05. The said appeal arose out of an order in IA 320/05 in OS 15/97. It was an application to restore the suit dismissed for default on 17.1.05. The plaintiff moved an application for restoration within time and PWs 1 & 2 were examined. 2. The contention of the revision petitioner was that as he was laid up with rheumatic complaint, he was not able to prosecute the case. The courts below did not accept the same. In support of the contention, the petitioner produced Ext.A1 medical certificate. The medical certificate would reveal that he was undergoing treatment with an Ayurvedic Doctor and the documents has been proved by examining him as PW2. In spite of all these, the courts did not appreciate the same. The principles to be followed in such cases are succinctly laid down in the decision of this court reported in Sreedhara Kurup v. Mickel [1968 KLT 599]. This court laid down the following guidelines in a petition under Order IX Rule 9 which reads as follows: “It is largely a matter of wise discretion to be exercised by the court bearing in mind the wholesome principle that the right of a party to be heard should be negatived only if there is gross C.R.P. NO.358/08 2 negligence or gross carelessness and that if some steps have been taken and application for restoration has been made with some diligence and some evidence adduced making out a sufficient cause for absence, restoration should be ordered, minor misconduct or laches being corrected by the common curative of costs. The brooding spirit of natural justice must be in the background while ascertaining whether there is sufficient cause.” 3. The plaintiff was examined as PW1, he had produced a medical certificate, examined the Doctor and further he had filed an application in time. He has moved in the right direction to get the suit restored. I feel this is a fit case where the courts below should have exercise the discretionary jurisdiction by enabling the plaintiff to contest the case on merits. 4. Therefore I set aside the orders in IA as well as in CMA and allow the application for restoration. I also direct the Subordinate Judge, Ottappalam, to restore OS 15/97 back to file and dispose it in accordance with law. I make it clear that this will not debar the court from considering the very maintainability of the suit under Sec. 105 of the Kerala Land Reforms Act, as a preliminary issue for arriving at a decision. The civil revision petition is disposed of accordingly. M.N.KRISHNAN, JUDGE vps C.R.P. NO.358/08 3