IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 21ST JUNE 2011 / 31ST JYAISHTA 1933 OP(C).No. 1886 of 2011(O) ------------------------- CMA.5/2010 of DISTRICT COURT, KALPETTA OS.103/1999 of SUB COURT, SULTHAN BATHERY (IA 1096/2006 IA 1097/2006) .................... PETITIONER: ------------------------ JINESH.M.T., S/O.ANNAKKUTTY, MANDOTHIL HOUSE, VENGAPPALLY AMSOM, THEKKUMTHARA DESOM, VYTHIRI TALUK, WAYANAD. BY ADV. SRI.P.K.MOHANAN(PALAKKAD) RESPONDENT(S): 4 ---------------- 1. MANDOTHIL THOMAS, S/O.THOMAS, AGRICULTURIST, RESIDING AT MANDOTHIL HOUSE, VENGAPPALLY AMSOM AND THEKKUMTHARA DESOM, VYTHRI TALUK, WAYANAD DISTRICT-673 121. 2. ANNAKKUTTY, W/O.THOMAS, MANDOTHIL HOUSE, VENGAPPALLY AMSOM, THEKKUMTHARA DESOM, VYTHIRI TALUK, WAYANAD DISTRICT-673 121. 3. BINEESH, S/O.THOMAS, MANDOTHIL HOUSE, VENGAPPALLY AMSOM THEKKUMTHARA DESOM, VYTHIRI TALUK, WAYANAD DISTRICT-673 121. 4. BABY ALIAS ANTONY, S/O.THOMAS, PLACHERI HOUSE, KAVUMANNAM VILLAGE, POST KAVUMANNAM, VYTHIRI TALUK, WAYANAD DISTRICT-673 121. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OPC 1886/2011 APPENDIX PETITIONER'S EXHIBITS : EXT.P1: COPY OF THE JUDGMENT IN O.S.NO.103/1999 ON THE FILE OF THE SUBORDINATE COURT, SULTHAN BATHERY DATED 3.4.2003 EXT.P2: COPY OF THE DECREE IN O.S.NO.103/1999 ON THE FILE OF THE SUBORDINATE COURT, SULTAHAN BATHERY DATED 3.4.2003. EXT.P3: COPY OF I.A.NO.1096/2006 IN O.S.NO.103/1999 ON THE FILE OF THE SUBORDINATE COURT, SULTHAN BATHERY DATED 16.11.2006. EXT.P4: COPY OF THE I.A.NO.1097/2006 IN O.S.NO.103/1999 ON THE FILE OF THE SUBORDINATE COURT, SULTHAN BATHERY DATED 16.11.2003. EXT.P5: COPY OF THE COUNTER STATEMENT FILED BY THE FOURTH RESPONDENT IN I.A.NO.1096/2006 IN O.S.NO.103/1999 ON THE FILE OF THE SUBORDINATE COURT, SULTHAN BATHERI DATED OCTOBER, 2007. EXT.P6: COPY OF THE COUNTER STATEMENT FILED BY THE FOURTH RESPONDENT IN I.A.NO.1097/2006 IN O.S.NO.103/1999 ON THE FILE OF THE SUBORDINATE COURT, SULTHAN BATHERI DATED OCTOBER, 2007. EXT.P7: COPY OF THE COMMON ORDER MADE BY THE SUBORDINATE JUDGE, SULTHAN BATHERY IN I.A.NO.1096/2006 AND I.A.NO.1097/2006 IN O.S.NO.103/1999 DATED 19.3.2010. EXT.P8: COPY OF THE ORDER OF THE DISTRICT JUDGE, WAYANAD, KALPETTA DATED 12.10.2010 IN C.M.A.NO.5/2010 ON ITS FILE. //TRUE COPY/ P.A. TO JUDGE K.T.SANKARAN, J. ----------------------------- O.P.(C) No.1886 of 2011 ----------------------------- Dated this the 21st day of June, 2011 JUDGMENT The petitioner is the third plaintiff in O.S.No.103 of 1999 on the file of the court of the Subordinate Judge of Sulthan Bathery. Respondents 1 and 2 herein are the other plaintiffs in the suit. The fourth respondent is the sole defendant in the suit. When the suit was taken up for hearing on 3rd April 2003, though the plaintiffs were present, they were not prepared to adduce evidence. The trial court dismissed the suit and decreed the counter claim made by the defendant. 2. The plaintiffs filed I.A.Nos.138 and 139 of 2004 to restore the suit to file and to condone the delay in making the application. Those applications were dismissed on 15.9.2004 for default. Thereafter, the plaintiffs filed I.A.No.690 of 2004 to restore the applications. I.A.No.690 of 2004 was dismissed by the order dated 23.1.2006. C.M.A.No.60 of 2006 filed against that order was dismissed by the District Court, Kalpetta by the order dated 14.2.2007. O.P.(C) No.1886/2011 2 3. After three years and eight months of the date of dismissal of the suit, the third plaintiff (petitioner) filed I.A.No.1096 of 2006 and I.A.No.1097 of 2006 for restoration of the suit and for condonation of delay in filing the application for restoration. The petitioner stated that he attained majority on 10.5.2004 when he was in Gujarat and he came to know about the decree only on getting the certified copy of the decree on 18.3.2006. Even going by that date, there was a delay of eight months in filing the application for restoration. The trial court dismissed the application as per the order dated 19.3.2010. The petitioner challenged that order in C.M.A.No.5 of 2010 before the District Court, Kalpetta. The C.M.Appeal was dismissed. The petitioner challenges the order and judgment of the courts below. 4. The courts below did not believe the case put forward by the petitioner that he was not aware of the judgment and decree before 18.3.2006. The courts below also held that the petitioner did not explain the delay of eight months after getting the certified copy of the judgment on 18.3.2006. The case of the O.P.(C) No.1886/2011 3 petitioner is that his mother, who was acting as the next friend did not properly prosecute the suit on behalf of the petitioner (who was minor at the relevant time) and she was negligent. There is no case of any collusion or fraud. The first defendant is the mother of the petitioner and the other defendants are his father and brother. The other defendants filed an application for restoration of the suit and that was dismissed for default and an application filed for restoration of that application was dismissed on the merits. By that time, the petitioner had attained majority. But, he did not do anything to record him as the major and to prosecute the application for restoration. The petitioner has no explanation for not prosecuting the matter even after attaining majority. The decree passed in 2003 cannot be upset at this distance of time. The courts below were right in dismissing the application. No interference is called for. Accordingly, the Original Petition is dismissed. K.T.SANKARAN JUDGE csl