IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 8TH FEBRUARY 2008 / 19TH MAGHA 1929 WP(C).No. 4595 of 2008(V) ------------------------- LAR.49/2006 of SUB COURT, PATHANAMTHITTA .................... PETITIONER: ------------ SANKARANARAYANAN NAIR, AGED 50 YEARS, S/O. GOPALA PANICKER, PULINTHUNDIL HOUSE, KAIPUZHA MURI, KULANADA VILLAGE, PATHANAMTHITTA DISTRICT. BY ADV. SRI. K.SHAJ RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, PATHANAMTHITTA. 2. THE EXECUTIVE ENGINEER, KSTP, KOTTARAKKARA DIVISION. BY GOVERNMENT PLEADER SMT. R. BINDU. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = W.P.C. NO. 4595 OF 2008 = = = = = = = = = = = = = = = Dated this the 8th day of February, 2008. J U D G M E N T This writ petition is filed to set aside Ext.P1 judgment in L.A.R.49/06 on the file of the Subordinate Court, Pathanamthitta and to direct the reference Court to dispose of the reference on merits. By an order dated 15th February, 2007 the reference Court answered the reference against the claimant for his absence and it has been held by the appellate court as well as by this Court that there cannot be a dismissal for default. It has to be stated this is not a case where the matter has been dismissed for default. Now, the Division Bench of this Court in the decision reported in Shahida Beevi v. State of Kerala [2008 (1) KHC page 383(DB)] had given the procedure to be followed in these types of cases. The Division Bench held that when the claimant is set exparte by the reference Court the procedure to be adopted as the High Court will not be in a position to W.P.C 4595 OF 2008 -:2:- decide the correctness of award, is by way of the claimant filing an application under Section 151 of CPC or S.151 r/w Order 9 Rule 9 CPC before the reference Court and the reference Court is bound to determine such petition on merits. In the light of the said proposition made by this Court this writ petition is disposed of directing the writ petitioner herein to move an application under Section 151 CPC or S.151 r/w Order 9 Rule 9 CPC for reconsideration of the materials. The writ petition is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-