IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 10TH FEBRUARY 2009 / 21ST MAGHA 1930 CRP.No. 780 of 2005(F) ---------------------- CMA.30/2005 of DISTR5ICT COURT, KOZHIKODE I.A.NO.1539/04 IN OS.789/1999 OF PRINCIPAL MUNSIFF COURT-I , KOZHIKODE .................... REVN. PETITIONER(S): APPELLANT/PLAINTIFF: ----------------------------------------- E. AJITH, S/O. KRISHNAN, ERACHANKANDY HOUSE, PUTHIYANGADI AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S): RESPONDENTS/DEFENDANTS: -------------------------------------------------------------- 1. K.E. SUNIL KUMAR, S/O. LATE RAMADAS, KOYILOTH ERACHANKANY HOUSE, PUTHIYANGADI AMSOM DESOM, KOZHIKODE. 2. K.E. PRAMOD, S/O. LATE RAMADAS, KOYILOTH ERACHANKANDY HOUSE, PUTHIYANGADI AMSOM DESOM, KOZHIKODE. 3. K.E. BIJU, S/O. LATE RAMADAS, KOYILOTH ERACHANKANDY HOUSE, PUTHIYANGADI AMSOM DESOM, KOZHIKODE. ADV. SRI.R.BINDU (SASTHAMANGALAM) FOR R1 TO 3 THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- C.R.P.No.780 of 2005 --------------------------------------------- Dated this the 10th day of February, 2009 ORDER The petitioner has filed this revision challenging the order dismissing his application under Order IX Rule 9 of the Code of Civil Procedure which was confirmed in appeal by the lower appellate court. In fact, the lower appellate court dismissed the appeal in limine. 2. The petitioner filed O.S.No.789/99 on the file of the court of the Principal Munsiff of Kozhikode for a permanent prohibitory injunction restraining the respondents from interfering with the peaceful possession and enjoyment of the plaint schedule property by the plaintiff under the pretext of repairing the lane situated on the eastern portion of the plaint schedule property. The suit was once dismissed for default in 2002 and it was restored in 2004. The suit was again listed for trial on 20.3.2004. The petitioner filed O.P. (T.P.)No.70/2004 before the District Court, Kozhikode to transfer the suit for trial along with another suit which was filed by the brother of the defendant. It was contended that the issues involved in both the suits were substantially the same. Pointing out that a Transfer CRP No.780/2005 2 Petition was pending, the petitioner filed I.A.No.1193/04 to remove the suit from the list. That application was filed on 19.3.2004 and it was dismissed on the same day. When the suit was taken up for trial on 20.3.2004, the petitioner was absent. Accordingly, the suit was dismissed for default. On 7.4.2004, he filed I.A.No.1539/04 under Order IX Rule 9 of the Code of Civil Procedure. The trial court dismissed that application by the order dated 11th January 2005. The petitioner filed C.M.A.No.30/05 on the file of the court of the District Judge, Kozhikode challenging the order of the trial court. Without issuing notice, the court below dismissed the appeal inlimine. The court below held that there is a trend among the parties to get the suit dismissed for default and thereafter, file application for restoration. The learned District Judge thought that such a trend should not be allowed to continue and that it would affect the discipline of the court and the administration of justice. It was also taken note of that the suit was filed in the year 1999 and it was dismissed once and later restored. Even if the petitioner thought that the pendency of the Transfer Petition was a good reason for removal of the case from the list, he could not CRP No.780/2005 3 think so after dismissal of the application filed for adjournment of the case on 19.3.2004, states the learned District Judge. 3. It is stated in the Memorandum of Civil Revision Petition that the petitioner was in fact ready to prosecute the suit and that he had filed the proof affidavit in lieu of chief examination well in advance. Since another suit was pending in which the question involved was substantially the same, the petitioner thought that it would be ideal, if both the suits are tried by the same court jointly. He filed a Transfer Petition under such circumstances. It is stated that the counsel for the petitioner advised him that the suit would not be taken up for trial since the Transfer Petition is pending. The petitioner acted on the advise of the counsel and he was under the honest belief that the suit would not be taken up for trial. It is true that there are laches on the part of the petitioner. It is also true that the suit is of the year 1999. But, the fact remains that the suit was not disposed of on the merits. The learned counsel for the petitioner also pointed out that the suit filed by the brother of the defendant was decreed and the petitioner has filed an appeal challenging that decree. That appeal is pending disposal. The CRP No.780/2005 4 counsel pointed out that this itself is a sufficient indication to hold that the petitioner was keen on prosecuting his case before the court and that the dismissal of the suit happened in the circumstances mentioned above. The counsel also submitted that the petitioner is a poor litigant and a coolie. If the suit is not restored, it is submitted that the petitioner would be put to great prejudice and loss. 4. The learned counsel for the respondents submitted that there is no justification for restoring a suit filed in 1999 which was dismissed in 2002, restored in 2004 and again dismissed for default in 2004. The respondents also submit that the petitioner was trying to protract the litigation and if the suit is restored to file, the respondents would be put to great prejudice. 5. Taking into account the facts and circumstances of the case stated above, I am of the view that on terms, a last chance can be afforded to the petitioner to prosecute the case. It is true that the petitioner was not so much vigilant in prosecuting the suit. There are laches on his part. It cannot be forgotten that he had filed a Transfer Petition to facilitate the joint trial of two CRP No.780/2005 5 suits including the present one. His case is that he was misled by the advise given by the counsel. It is also to be noted that had the court below admitted the appeal, it could have been disposed of in 2005 itself allowing the application on terms. This necessitated the filing of the revision and the pendency of the case for several years. That by itself should not be a reason for rejecting the prayer made by the petitioner. Accordingly, the Civil Revision Petition is allowed. The oder and judgment impugned are set aside and the suit is restored to file on condition that the petitioner deposits before the court below within a period of one month, a sum of Rs.2,000/- as costs. The costs shall be irrespective of the result of the suit. If the petitioner fails to pay the costs as aforesaid, the Civil Revision Petition will stand dismissed. On deposit of the costs as aforesaid, the suit shall be posted for trial in the special list at the earliest. Unless there are exceptional and compelling circumstances, the plaintiff shall not be permitted to seek adjournment. K.T.SANKARAN, JUDGE csl