IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 20TH MAY 2010 / 30TH VAISAKHA 1932 CRP.No. 673 of 2009() --------------------- CMA.27/2008 of SUB COURT, TIRUR O.S.NO.199 OF 2003 OF MUNSIFF'S COURT, TIRUR .................... PETITIONERS/APPELLANTS ------------------------------------------- 1. KALODI BEEKUTTY HAJJUMMA, D/O.KALODI KUNHAHAMMED HAJI, PONMUNDAM AMSOM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT. 2. MOHAMMEDKUTTY HAJI, S/O. VALIYAPEEDIYEKKAL VEERANKUTTY, PONMUNDAM AMSOM, DESOM, TIRUR TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.JAMSHEED HAFIZ RESPONDENT(S): RESPONDENTS -------------------------- 1. KUZHIKKARAKKATTIL HANEEFA, S/O. SAIDALIKUTTY, PONMUNDAM AMSOM CHILAVIL DESOM, P.O.PONMUNDAM, TIRUR TLAUK. 2. KADEEJA,W/O.LATE KUZHIKKARAKKATTIL SAIDALIKUTTY, -DO- -DO- 3. MOIDEEN,S/O.LATE KUZHIKKARAKKATTIL SAIDALIKUTTY, -DO- -DO- 4. YOUSUF, S/O.LATE KUZHIKKARAKKATTIL SAIDALIKUTTY, -DO- -DO- 5. MANSOOR,S/O.LATE KUZHIKKARAKKATTIL SAIDALIKUTTY, -DO- -DO- 6. RASHEED, S/O.LATE KUZHIKKARAKKATTIL SIDALIKUTTY, -DO- -DO- CRP NO.673/2009 2 7. THITHIMMA, D/O.LATE KUZHIKKARAKKATTIL SIDALIKUTTY, -DO- -DO- 8. RASEENA, D/O.LATE KUZHIKKARAKKATTIL SIDALIKUTTY, -DO- -DO- 9.THESLEENA, D/O.LATE KUZHIKKARAKKATTIL SIDALIKUTTY, -DO- -DO- (REP. BY MOTHER 2ND RESPONDENT) ADV. SRI.S.SREEDEV FOR R1,R2,R9 THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- C.R.P.No.673 of 2009 -------------------------------------- Dated this the 20th day of May, 2010. ORDER Petitioners challenge judgment of learned Sub Judge, Tirur in C.M.A.No.27 of 2008 confirming dismissal of I.A.No.174 of 2008 in O.S.No.199 of 2003 of the court of learned Munsiff, Tirur. They filed the suit for fixation of boundary and mandatory injunction. The case, after pre-trial steps were taken was included in the list for trial on 11.12.2007. That day, petitioners remained absent. Their power of attorney holder, their son was also absent. Learned Munsiff dismissed the suit. Petitioners filed I.A.No.174 of 2008 for restoration of the suit stating that they are aged above 70 years and that petitioner No.2 was suffering from high blood pressure and was advised bed-rest during the relevant time. Application was opposed by respondents/defendants stating that no sufficient cause has been shown for restoration of the suit. Learned Munsiff accepting that contention dismissed the application (I.A.No.174 of 2008). In appeal learned Sub Judge has confirmed that order. Hence this revision. 2. I have heard learned counsel for petitioners and respondents. Learned counsel for petitioners would contend that there was no willful laches or delay on the part of petitioners and that their absence was on account of their old age difficulties and illness of petitioner No.2. It is submitted by learned counsel that to prove the illness of petitioner No.2 a medical certificate was also CRP No.673/2009 2 produced in the trial court which was not considered by the courts below. According to the learned counsel power of attorney holder of petitioners had to be to Bombay during the relevant time in connection with obtaining passport to go abroad and hence, he also could not appear in court. Learned counsel for respondents would contend that illness of petitioner No.2 stated in the affidavit is not the one referred to in the medical certificate produced and that there is no mention in the affidavit in support of I.A.No.174 of 2008 as to the reason for absence of power of attorney holder of petitioners. I have gone through the photocopy of the medical certificate dated 01.01.2008 given to me by the learned counsel for petitioners. There, it is stated that V.V.Muhammedkutty Haji (petitioner No.2) was suffering coronary artery disease and was under treatment of the medical officer who has issued that certificate. The certificate further says that the said V.V.Muhammedkutty Haji was advised complete bed- rest from 09.12.2007 to 25.12.2007. 3. It is true that in the affidavit in support of the petition what is stated is that petitioner No.2 was suffering from high blood pressure while in the medical certificate the disease is stated as coronary artery disease. It is not as if high blood pressure is unconnected with coronary artery disease. I do not find reason to reject the submission of learned counsel for petitioners that the power of attorney holder of petitioners was in Bombay at the relevant time in connection with obtaining a passport. CRP No.673/2009 3 4. In Sreedhara Kurup v, Mickel (1968 KLT 599) this Court has stated that touch-stone in a case under Order 9 Rule 9 of the Code of Civil Procedure is the presence of 'sufficient cause' for non-appearance when the suit was called on for hearing, that it has always to be remembered that the broad principle of natural justice that informs our judicial institutions is that a litigant should not be deprived of a hearing unless there has been something 'equivalent to misconduct or gross negligence on his part'. It is also stated that if there was some diligence on the part of the plaintiff and he has taken some steps he should be given an opportunity to prosecute the suit. Having heard counsel on both sides I am not persuaded to think that there was any misconduct or gross negligence on the part of petitioners. At any rate, minor laches if any on the part of petitioners can be corrected by common curative of cost. On going through the orders under challenge I find that the spirit which the courts have to bear in mind while considering request for restoration was overlooked. Having regard to the facts and circumstances of this case I am inclined to allow the revision petition on condition that petitioners paid to the counsel for respondents Rs.1,500/- (Rupees One thousand and five hundred only) by way of cost on or before 31.05.2010. CRP No.673/2009 4 Resultantly this Civil Revision Petition is allowed on condition that petitioners paid to counsel for respondents Rs.1,500/- (Rupees One thousand and five hundred only) by way of cost on or before 31.05.2010. In case the above condition is not complied revision petition will stand dismissed in confirmation of the impugned judgment. Call on 31.05.2010. THOMAS P.JOSEPH, Judge. cks