IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 22ND JULY 2010 / 31ST ASHADHA 1932 WP(C).No. 19773 of 2010(O) -------------------------- IA N.5084/2010 IN OS.429/2000 of PRINCIPAL SUB COURT,THRISSUR .................... PETITIONER(S): --------------- JAYATHILAKAN, AGED 53, S/O.RAMAN, CHERKARA THANDAYAN HOUSE, VADANAPPALLY AMSOM DESOM, CHAVAKKAD TALUK, REP. AS THE POWER OF ATTORNEY HOLDER, LALI, W/O.JAYATHILAKAN, CHERKARA THANDAYAN HOUSE, VADANAPPALLY AMSOM DESOM, CHAVAKKAD TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) RESPONDENT(S): --------------- 1. SANTHA, W/O.LATE VELAYUDHAN, MANANGATH HOUSE, VADANAPPALLY AMSOM DESOM, CHAVAKKAD TALUK, PIN 680506. 2. SHIJU, S/O.LATE VELAYUDHAN, MANANGATH HOUSE, VADANAPPALLY AMSOM DESOM, CHAVAKKAD TALUK , PIN 680506. 3. SANDEEP, S/O.LATE VELAYUDHAN, MANANGATH HOUSE, VADANAPPALLY AMSOM DESOM, CHAVAKKAD TALUK, PIN 680506. ADV. SRI.RANJITH XAVIER FOR R1 & 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.19773/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF PLAINT IN OS NO.429/2000 ON THE FILE OF SUB COURT, THRISSUR DATED 14.6.2000 EXT.P2 TRUE CPY OF WRITTEN STATEMENT IN EXT.P1 SUIT DATED 9.10.2001 ON THE FILE OF SUB COURT, THRISSUR EXT.P3 TRUE COPY OF APPLICATION FILED BY PETITIONER AS IA NO.5084/2010 DATED 9/6/2010 EXT.P4 A TRUE COPY OF IMPUGNED ORDER PASSED IN IA NO.5084/2010 IN OS NO.429/2000 DATED 15.6.2010 ON THE FILE OF SUB COURT, THRISSUR //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.19773 of 2010 -------------------------------------- Dated this the 22nd day of July, 2010. JUDGMENT Petitioner filed O.S.No.429 of 2000 in the court of learned Principal Sub Judge, Thrissur for fixation of boundary and consequential reliefs. Property of petitioner was measured by the Advocate Commissioner with the assistance of Village Officer and report and plan were submitted. When the case came up for trial in the list petitioner was examined as PW1. Though summons was taken to the Village Officer for his examination as witness, it was returned with the endorsement that he has retired from service and hence could not be served. Thereon petitioner filed application to issue summons to the Advocate Commissioner and the Village Officer (in the house address of the latter). That application was allowed on cost of Rs.400/- payable on or before 11.06.2010. Summons was issued to the witnesses and as learned counsel for petitioner put it, they were present in the court below on 16.06.2010. But on account of some mistake petitioner could not comply with the order for payment of cost within the time stipulated. Petitioner states that on 16.06.2010 he was ready and willing to pay cost to the counsel for respondents/defendants but he was not willing to receive the same. Learned Sub Judge was also not in a mood to condone the delay on the part of petitioner in paying cost and consequently vide order dated 15.06.2010 dismissed I.A.No.5084 of 2010. That order is under challenge in this Writ Petition. Learned counsel for petitioner states that petitioner was prepared to pay cost on 16.06.2010 when the witnesses summoned were present in court. Learned counsel for respondent Nos.1 and 3 (respondent No.2 is abroad and WP(C) No.19773/2010 2 notice on his behalf was served on his wife but there is no response) state that there was non-compliance of the order of court below which resulted in dismissal of I.A.No.5084 of 2010. 2. I am not inclined to think that non-payment of cost within time as ordered on I.A.No.5084 of 2010 was willful. Atleast when on 16.06.2010 witnesses were present and petitioner offered to pay cost, respondents ought to have accepted it. Assuming that for their own reasons respondents were not prepared to receive cost, learned Sub Judge was not helpless. Learned Sub Judge need not have dismissed I.A.No.5084 of 2010 and in case respondents were not willing to receive cost learned Sub Judge could have permitted petitioner to deposit the same in court and allowed I.A.No.5084 of 2010. Courts have to bear in mind that it is respected not for the technical disposals it make but for administering justice. Having regard to the facts and circumstances I am inclined to interfere with the order on I.A.No.5084 of 2010. Resultantly, this Writ Petition is allowed and order dated 15.06.2010 on I.A.No.5084 of 2010 in O.S.No.429 of 2000 of the court of learned Principal Sub Judge, Thrissur is set aside. That application is allowed on condition that petitioner paid cost to the respondents through their counsel in the trial court and in case it is not accepted, deposited the same in that court within three weeks from this day. On such payment/deposit summons shall be issued to the WP(C) No.19773/2010 3 witnesses as requested for in I.A.No.5084 of 2010. In case cost is not paid/deposited as above said this Writ Petition shall stand dismissed. THOMAS P.JOSEPH, Judge. cks