IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 8TH SEPTEMBER 2010 / 17TH BHADRA 1932 WP(C).NO. 24372 OF 2010(O) ----------------------------------------- AGAINST THE ORDER IN IA 3929/2009 IA 380/2010 IN OS.633/2007 OF PRINCIPAL SUB COURT,KOLLAM .................... PETITIONER(S): ------------------------- JAYAKUMAR.M., S/O MANMADAN NAIR, VIJAYABHAVANAM, KUMBALE JUNCTION, KADAPPA MURI, MYNAGAPPALLY, KOLLAM. BY ADV. SRI.B.MOHANLAL SRI.C.SINOY RESPONDENT(S): ------------------------- SUMA, W/O MARTIN, KOTTAPURATH VEEDU, MANAKKARA MURI,SASTHAMKOTTA VILLAGE & P.O., KOLLAM-690521. ADV. SRI.P.V.DILEEP FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: --------------------------------- EXHIBIT P1 TRUE COPY OF THE PARTICULARS OF THE B DIARY OF THE SUB COURT, KOLLAM IN O.S. NO.633 OF 2007. EXHIBIT P2 TRUE COPY OF THE ORDER DATED 4.1.2010 IN I.A. NO.3929 OF 2009 IN O.S. NO.633 OF 2007 OF THE PRINCIPAL SUB COURT, KOLLAM. EXHIBIT P3 TRUE COPY OF THE APPLICATION I.A. NO.380 OF 2010 IN O.S. NO.633 OF 2007 OF THE PRINCIPAL SUB COURT, KOLLAM. EXHIBIT P4 TRUE COPY OF THE ORDER IN I.A. NO.380 OF 2010 IN O.S. NO.633 OF 2007 OF THE PRINCIPAL SUB COURT, KOLLAM DATED 19.6.2010. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) 24372 of 2010 ==================================== Dated this the 08th day of September, 2010 J U D G M E N T This Writ Petition is in challenge of Ext.P4, order passed by the learned Principal Sub Judge, Kollam on I.A. No.380 of 2010. Styling as an application for review under Rule 1 of Order XLVII of the Code of Civil Procedure (for short, “the Code) petitioner- plaintiff wanted to review/restore I.A.No.3929 of 2009 (which was for restoration of the suit dismissed for default) which was dismissed for default on 04.01.2010. Learned Sub Judge took the view that Ext.P3, application for review is not in the proper form, appropriate court fee has not been paid and consequently dismissed that application. That order is under challenge. 2. Petitioner sued respondents for realisation of Rs.3 lakhs on a dishonoured cheque. Respondent filed written statement denying the claim of petitioner. Issues were framed and case was posted on 06.11.2009 (learned counsel for petitioner states that balance court was paid in the meantime). On 06.11.2009 since there was no representation for petitioner the suit was dismissed. That was followed by petitioner filing I.A. W.P(C) No.24372 of 2010 -: 2 :- No.3929 of 2009 for restoration of the suit. On that application learned Sub Judge ordered notice to the respondent and posted the matter on 03.01.2010. That day, unfortunately happened to be a Sunday. Petitioner states that clerk of his Advocate verified the A diary on the afternoon of 04.01.2010 (the next working day) and found that case was called on 04.01.2010 and I.A. No.3929 of 2009 was dismissed by Ext.P2, order for default. It is thereon that petitioner filed Ext.P3, I.A. No.380 of 2010 for “review” which has been dismissed by the learned Sub Judge as per Ext.P4, order for the reasons stated above. Learned counsel states that petitioner was not aware that I.A. No.3929 of 2009 will be called on the morning of 04.01.2010. Learned counsel for respondent opposed the prayer in the Writ Petition. 3. No doubt, it is seen from Ext.P3, I.A. No.380 of 2010 that the application has been styled as one for review under Rule 1 of Order XLVII and Section 151 of the Code. But on going through the affidavit in support of the application it is seen that the real purport of the application was to restore I.A. No.3929 of 2009 which was dismissed for default reason being that the said application was posted for return of notice on 03.01.2010 which happened to be a Sunday and the clerk of the Advocate verified A W.P(C) No.24372 of 2010 -: 3 :- diary only on the afternoon of next the working day (04.01.2010) when it was revealed that I.A. No.3929 of 2009 was called on the morning of 04.01.2010 and dismissed for non-representation. It therefore leaves me in no doubt that Ext.P3, application is to restore I.A.No.3929 of 2009 which was dismissed for default since there was no order on merit passed on I.A. No.3929 of 2009 to be reviewed under Rule 1 of Order XLVII and Sec.151 of the Code. This aspect of the matter, learned Sub Judge failed to bear in mind and rather, was carried away by the label given to the application. Having regard to the facts and circumstances I am inclined to treat Ext.P3, application as one for restoration of I.A. No.3929 of 2009. 4. On to the reasons for absence of petitioner and counsel when I.A. No.3929 of 2009 was called in the court on the morning of 04.01.2010, as I stated explanation is that clerk of the Advocate verified the A diary only on the afternoon of 04.01.2010. I find no reason to disbelieve that statement. I am satisfied that sufficient cause is shown for absence of petitioner and counsel when I.A. No.3929 of 2009 was called on the morning of 04.01.2010. Hence I am inclined to allow I.A. No.380 of 2010. W.P(C) No.24372 of 2010 -: 4 :- Resultantly, this Writ Petition is allowed in the following lines: (i) Exhibit P4, order is set aside and I.A.No.380 of 2010 is allowed. (ii) Learned Principal Sub Judge shall restore I.A. No.3929 of 2009 to file and proceed with that application as provided under law. Parties shall appear in the court of learned Principal Sub Judge, Kollam on 07.10.2010. THOMAS P. JOSEPH, JUDGE. vsv