IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE THE ACTING CHIEF JUSTICE MR. KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 16TH MARCH 2009 / 25TH PHALGUNA 1930 FAO.No. 68 of 2009() -------------------- LAR.29/2000 of ADL.SUB COURT, THALASSERY .................... APPELLANTS/PETITIONERS/CLAIMANTS ---------------------------------------------------- 1. P.V.NANI AMMA, W/O. GOPALAN NAMBIAR (LATE), GOKULAM, THERUR DESOM, KEEZHUR AMSOM, P.O.EDAYANNUR, KANNUR DISTRICT. 2. P.V.JAYAGOPIKRISHNAN S/O. GOPALAN NAMBIAR (LATE), GOKULAM, THERUR DESOM, KEEZHUR AMSOM, P.O.EDAYANNUR, KANNUR DISTRICT. 3. P.V.JAYACHANDRAN S/O. GOPALAN NAMBIAR (LATE), GOKULAM, THERUR DESOM, KEEZHUR AMSOM, P.O.EDAYANNUR, KANNUR DISTRICT. BY ADV. SRI.K.V.PAVITHRAN SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL RESPONDENT(S): ----------------------- THE SPECIAL TAHSILDAR (LA), AIRPORT, KANNUR AT MATTANNUR, KANNUR DISTRICT. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 16/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: KURIAN JOSEPH, Ag.C.J. & S.S.SATHEESACHANDRAN, J. ------------------------------------------------- F.A.O.No.68 of 2009 -------------------------------------------------- Dated this the 16th day of March, 2009 JUDGMENT Kurian Joseph, Ag.C.J. This is an appeal filed against the order dated 17-2-2004 in I.A.No.72/2004 in L.A.R.No.29/2000. The said application was filed under Order IX Rule 13 CPC. The applicants are the claimants. The reference was answered by the court on 2-12-2003 in the absence of the claimants. The reference court has dismissed the application holding that once reference has been answered the remedy open to the claimants is to file an appeal and not an application under Order IX Rule 13 CPC. The situation has been considered in detail by this court leading to the decision in Shahida Beevi v. State of Kerala, 2008 (1) KLT 206. In this case it is not in dispute that there is no consideration of the claim of the appellants on merits, since the appellant did not get an opportunity to adduce evidence. However, we are of the view that the appellant shall not be entitled in this case for a premium on account of his laches of F.A.O.No.68 of 2009 -:2:- non-co-operation with the court. 2. In the above circumstances, we set aside the order dated 17-2-2004 in I.A.No.72/2004 in L.A.R.No.29/2000. The said application is treated as one under Section 151 of the Code of Civil Procedure. The application is allowed. The judgment and decree dated 2-12-2003 in L.A.R.No.29/2000 on the file of the Sub Court, Thalassery are set aside. We make it clear that in the event of any enhancement being granted, the claimants shall not be entitled to interest at the rate of 15% for the period from 2-12-2003 to the date of judgment as per the direction contained in this judgment. The appeal is allowed as above. (KURIAN JOSEPH, Ag.Chief Justice) (S.S.SATHEESACHANDRAN, Judge) ahg. KURIAN JOSEPH, Ag.C.J. & S.S.SATHEESACHANDRAN, J. --------------------------- F.A.O.No.68 of 2009 ---------------------------- JUDGMENT 16th March, 2009