IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 22ND FEBRUARY 2008 / 3RD PHALGUNA 1929 CRP.No. 1440 of 2004(C) AGAINST THE ORDER IN IA 2154/03 & 2155/03 IN OS.NO.392 OF 2000 ON THE FILE OF THE MUNSIFF'S COURT, ALUVA REVN. PETITIONER: PETITIONER: PLAINTIFF: --------------------------- STEPHEN, S/O.POULO, GOPURATHINKAL HOUSE, KARAYAMPARAMBU KARA, KARUKUTTY P.O. BY SRI.STEPHEN (PARTY IN PERSON) RESPONDENTS: RESPONDENTS: DEFENDANTS: ------------------------ 1. E.P.SAMUEL, S/O.PAILY, EDASSERI HOUSE, ANGAMALY KARA, ANGAMALY VILLAGE. 2. ASSISTANT ENGINEER, NATIONAL HIGHWAY, ANGAMALY. 3. THE PRINCIPAL SECRETARY, NATIONAL HIGH WAY, TRIVANDRUM. R1 BY ADV. SRI.PAUL K.VARGHESE SRI.NIBU MURALI THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. -------------------------------------------- C.R.P. NO. 1440 OF 2004 -------------------------------------------- Dated this the 22nd February, 2008 O R D E R The petitioner is the plaintiff in O.S.No.392 of 2000, on the file of the Court of the Munsiff of Aluva. The suit was for permanent prohibitory injunction. The suit was listed for trial on 1.9.2003. On that day, an application was filed by the counsel for the petitioner for adjournment of the case on the ground that the petitioner was undergoing treatment in the hospital. Medical certificate was also produced. However, the application was dismissed and the suit was dismissed for default. 2. Petitioner filed I.A.Nos.2154 of 2003 and 2155 of 2003 under Order IX Rule 9 of the Code of Civil Procedure and Section 5 of the Limitation Act to restore the suit which was dismissed for default and to condone the delay in filing such application. The petitioner contended that his non-appearance on 1.9.2003 was not wilful and that he was prevented by sufficient cause from appearing in Court when the suit was taken up for trial. The applications were opposed by the respondents. On behalf of the petitioner, PWs.1 and 2 were examined and Exts.A1 and A2 were marked. The case of the petitioner is that he was ill and he had to undergo a surgery on 30.6.2003. The doctor who treated the petitioner C.R.P. NO.1440 OF 2004 :: 2 :: was examined as PW2. He stated that the petitioner was admitted in the hospital on 30.6.2003 and he continued as inpatient till 9.7.2003. The petitioner stated that even after discharge from the hospital he was compelled to take rest and that was why he was not able to appear before Court. There was a delay of 73 days in filing the application. The court below held that there is no reason to condone the delay. Consequently, the application was dismissed. 3. That the petitioner underwent a surgical operation is not disputed. It is also not in dispute that an application was filed for removal of the case from the list on 1.9.2003. Taking a lenient view in the matter, I am of the opinion that the court should have condoned the delay of 73 days in filing the application. It cannot be assumed that a party was negligent in appearing before Court. The evidence of PWs.1 and 2 would indicate that the petitioner was hospitalized and he had to undergo a surgery. A hyper technical approach would not be justified in such circumstances. The prejudice that could happen to the respondents/ defendants is that the suit would be disposed of on the merits. Pitted against the inconvenience and prejudice that would be caused to the respondents/ defendants, I am of the view that substantial justice would be sub-served by restoring the suit, which was dismissed for default. C.R.P. NO.1440 OF 2004 :: 3 :: 4. For the aforesaid reasons, the order impugned is set aside, the applications are allowed and the suit is restored to file. The trial court shall dispose of the suit on the merits, as expeditiously as possible. No order as to costs. Communicate a copy of this order to the petitioner as the petitioner was appearing in person and as he was absent when the case was taken up for hearing. (K.T.SANKARAN) Judge ahz/