IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 19TH FEBRUARY 2010 / 30TH MAGHA 1931 WP(C).No. 1756 of 2010(O) ------------------------------------- C.M.A.NO.30/2008 OF SUB COURT, TIRUR, O.S.NO.172/2005 OF MUNSIFF COURT,PARAPPANANGADI. .................... PETITIONER: ------------------- MOHAMMED AKBAR,AGED 28 YEARS, S/O.PARAMBAN MOIDEEN,THAIKKANDI HOUSE,NEDUVA AMSOM DESOM, P.O.CHETTIPPADI,TIRURANGADI TALUK. BY ADV. MR.K.K.MOHAMED RAVUF. RESPONDENTS: ------------------------ 1. MUNDOLI SAINABA,W/O.KIZHAKKINIYAKATH KUNHALIKUTTY NAHA, JANAHAR MANZIL,TIRURANGADI TALUK, NEDUVA AMSOM,DESOM,P.O.CHETTIPPADI, MALAPPURAM DISTRICT. 2. KIZHAKKINIYAKATH KUNHALIKUTTY NAHA, S/O.HAJI MAMMUKEYI,DO. DO. DO. 3. KABEER,S/O.KIZHAKKINIYAYKATHU KUNHALIKUTTY NAHA, DO. DO. DO. R1 TO R3 BY ADVS. MR.K.RAMACHANDRAN, MR.K.MOHAMMED FAISAL NAHA, MR.S.SREEDEV. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/02/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.1756/2010-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE INTERIM INJUNCTION DTD. 01/08/2005. EXT.P.2: COPY OF THE REPORT AND PLAN. EXT.P.3: COPY OF THE ORDER DTD. 10/11/2008 IN O.S. NO. 172/2005 OF THE MUNSIFF COURT, PARAPPANANGADI. EXT.P.4: COPY OF THE ORDER DTD. 26/09/2009 IN C.M.A. NO. 30/2008 OF THE SUB COURT, TIRUR. RESPONDENTS' EXHIBITS: EXT.R1.A: COPY OF THE PLAN DTD. 20/07/2009 SUBMITTED BY THE ADVOCATE COMMISSIONER IN O.S. NO. 161/05 OF THE MUNSIFF COURT, PARAPPANANGADI. EXT.R1.B: COPY OF THE REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER IN O.S. NO. 161/05 OF THE MUNSIFF COURT, PARAPPANANGADI. EXT.R1.C: COPY OF THE JUDGMENT DTD. 14/12/2009 IN O.S. NO. 161/05 OF THE MUNSIFF'S COURT, PARAPPANANGADI. EXT.R1.D: COPY OF THE DECREE DTD. 14/12/2009 IN O.S. NO. 161/05 OF THE MUNSIFF'S COURT, PARAPPANANGADI. //TRUE COPY// P.A. TO JUDGE. Prv. P.BHAVADASAN, J. ------------------------------------- WP(C) No.1756 of 2010-O ------------------------------------- Dated 19th February 2010 Judgment This Writ Petition is filed under Article 227 of the Constitution of India, seeking the following reliefs : “(i) issue a writ of certiorari or any other appropriate writ, order or direction, quashing Ext.P4 order, after calling for the records leading to the same. (ii) pass orders allowing IA No.1266/08 in OS No.172/08 on the file of the Munsiff's Court, Parappanangadi and restore the suit OS No.172 of 2008 to files.” 2. The petitioner is the plaintiff in OS No.172 of 2005 before the Munsiff's Court, Parappanangadi. The suit was one for injunction. The defendants entered appearance and filed a written statement in the suit. The matter related to a pathway. The case was posted in the list on 08.07.2008. While so, the petitioner filed two petitions, one for removing the case from the list and the other for deputing the same Commissioner for preparing a WPC 1756/10 2 report after inspecting the property. The case was then posted to 07.07.2008. On that day, both the petitions were dismissed and the case was posted to 08.07.2008 itself. On 08.07.2008, it is submitted, the father of the Power of Attorney Holder was admitted in the hospital and he had to leave the Court. Therefore, he could not give evidence on that day. The suit was therefore, dismissed for default. 3. The petitioner would say that on the very next day, i.e., on 9.7.2008, the Power of Attorney was present in the Court and on coming to know that the suit was dismissed, he immediately filed IA No.1266/08 for restoration of the suit. That petition was dismissed by Ext.P3 order. The aggrieved petitioner carried the matter in appeal as CMA No.30/08. The Appellate Court confirmed the order of the Trial Court by Ext.P4 order. Hence this Writ Petition, challenging Ext.P4 order. 4. The Courts below have observed that a number of opportunities had been granted to the petitioner to adduce evidence and that seems to be the reason, WPC 1756/10 3 which guided the Courts below in rejecting reliefs to the petitioner. There is nothing to show that the reason given by the petitioner for his absence on the date on which the suit was listed for trial, is not acceptable or it was false. 5. One has also to remember that when a suit is dismissed for default, the plaintiff has no right of appeal and he cannot file another suit for the very same course of action. It is inconceivable that the plaintiff would deliberately absent himself from the Court on the date of posting of the case, taking the risk of getting the suit dismissed for default. Whatever that be, it will only be just and proper if the suit is restored to file and the petitioner is given an opportunity for having it decided on merits. In the result, this Writ Petition is allowed. I A No.1266/08 in OS No.172/08, filed before the Trial Court, is allowed and the suit shall stand restored to file. The Court below shall endeavour to dispose of the suit as expeditiously as possible, at any rate, within six months from the date of WPC 1756/10 4 receipt of a copy of this Judgment. P.BHAVADASAN, JUDGE sta WPC 1756/10 5