IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 23RD FEBRUARY 2011 / 4TH PHALGUNA 1932 WP(C).No. 4310 of 2009(K) --------------------------------------- OS.521/1994 of ADDL.SUB COURT, PALAKKAD .................... PETITIONER(S): ------------------------ ANTONY, S/O.MANNUKKARA VEETTIL VARKEY, AGED 49, RESIDING AT KATTUKOTTIL, VADAKKANCHERRY AMSOM, ALATHUR TALUK. BY ADV. SRI.S.EASWARAN SRI.P.MURALEEDHARAN (IRIMPANAM) RESPONDENT(S): -------------------------- 1. K.J.MARIKUTTY, D/O.KATTUKOTTIL JOSEPH, KORATTIKARA, ERUMELI VILLAGE, KANHIRAPALLI TALUK. 2. K.J.JOSEPH, S/O. DO. DO. 3. K.J.ELSIKUTTY, W/O.ADV.V.V.GEORGE, PARAMEL HOUSE, EZHALLURKARAYIL, KUMARAMANGALAM, THODUPUZHA TALUK. 4. K.J.LUKOSE, S/O.KUTTUVELIL JOESPH, MANJAPRA AMSOM DESOM, ALATHUR TALUK. 5. K.J.VINCENT, S/O. DO. MAMGALAM AMSOM DESOM, ALATHUR TALUK. 6. RAJENDRAN, S/O.THANNIKKAL MADHAVAN, RESIDING AT KADAPPARA, MANGALAM DAM VILLAGE, ALATHUR TALUK. 7. KUMARAN (DIED) HIS LEGAL HEIRS MOHANAN, S/O.PLATHOTTATHIL KUMARAN, MANGALAM DAM VILLAGE, ALATHUR TALUK. sts WP(C)NO.4310/2009 8. KUTTAPPAN, S/O.KUMARAN, DO. DO. 9. SASI, S/O.PRABHAKARAN, DO. DO. 10. SURENDRAN, S/O.KUTTAPPAN, DO. DO. 11. K.K.SASI, S/O.KUMARAN, DO. DO. 12. GEORGE, S/O.SKARIA, DO. DO. 13. JOSEPH, S/O.DEVASSYA, DO. DO. R1 TO R5 BY ADV. SRI.C.P.RAVIKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.4310/2009 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE AFFIDAVIT AND PETITION DATED 2/2/2008 ALONG WITH ORDER THEREON DATED 11/4/2008. P2 COPY OF THE AFFIDAVIT AND PETITION I.A.NO.2140 OF 2001 DATED 17/7/2008 IN O.S.NO.521 OF 1994. P3 COPY OF THE AFFIDAVIT AND PETITION I.A.NO.2141 OF 2008 DATED 17/7/2008 IN DO. P4 COPY OF THE COUNTER STATEMENT DATED 6TH AUGUST 2008 FILED ON BEHALF RESPONDENTS 1 TO 5. P5 COPY OF THE ORDER DATED 26/8/2008 IN I.A.NO.2140 AND 2141 OF 2008 IN O.S.NO.521 OF 1994. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts HARUN-UL-RASHID,J. ------------------------------- W.P.(C). NO.4310 OF 2009 ------------------------------- DATED THIS THE 23RD DAY OF FEBRUARY, 2011 JUDGMENT Plaintiff in O.S.No.521/94 on the file of the Additional Sub Court, Palakkad is the petitioner. Exts.P1 and Ext.P5 orders passed by the learned Sub Judge are under challenge. The suit is filed for specific performance of an oral agreement for sale of the plaint schedule properties. The court below ordered joint trial of the suit along with the connected suit, namely, O.S.No.522/94. Both suits were posted on 4/1/2008 for trial in the special list. Both suits were dismissed. 2. The petitioner filed I.A.No.486/2008 to set aside the order of dismissal of the suit for default. I.A.No.486/2008 is posted for enquiry to 11/4/2008. On that day also neither the petitioner nor his counsel are present. Therefore, the court below dismissed the I.A.No.486/08. Thereafter, the petitioner filed IA.No.2140 and 2141/2008 in I.A.No.486/2008 for setting aside -2- WP(C).No.4310/2009 the order dismissing the suit for default and for condonation of delay of 66 days. The petitioner also produced a medical certificate signed by Dr. Raheesh Ravindran, Pushpagir Medical College Hospital, Thiruvalla. According to the petitioner, he could not appear before the court below, when the I.A.No.486/2008 came up for hearing, because he was suffering from heart disease and liver disease. The learned Judge did not rely on the document produced by the petitioner and observed that the petitioner wilfully remained absent so as to delay the disposal of the suit. The learned Judge also observed that the petitioner has failed to prove that he could not appear before the court below on the date of hearing due to valid reason. 3. The learned counsel for the petitioner submits that the petitioner was suffering from heart disease and liver disease and therefore he was unable to attend the court on the date of enquiry. The learned counsel also submits that the court below is not justified in not relying on the document produced which would -3- WP(C).No.4310/2009 show that he was suffering from serious ailments. I have already stated the reasons for dismissal of the applications. In the facts and circumstances narrated in the impugned order by the learned Judge it can be seen that the petitioner was not prosecuting the case vigilantly. Therefore, there is every justification for the court below to say that the petitioner has failed to prove that he could not appear before the court below on the date of hearing due to valid reasons. Though there is no satisfactory explanation for his absence on the date of enquiry, in the interest of justice, this Court is of the view that an opportunity shall be given to the petitioner to prosecute the case. Finding that the suit was dismissed for default and since the case was not decided on merits, this Court feels that ends of justice demands another opportunity be extended to the petitioner to prosecute the case, on terms. In the circumstances, Ext.P5 order is set aside. I.A.No.2141/08 filed for condoning the delay in filing I.A.No.2140/08 and I.A.No.2140/08 filed for restoration of I.A.No.486/08 are allowed. I.A.No.486/206 filed for setting aside -4- WP(C).No.4310/2009 the judgment dismissing the suit for default is also allowed. The suit is restored to file and a direction is issued to the trial court to consider and dispose of the suit afresh in accordance with law. The afore-said applications are allowed only on condition that the petitioner shall deposit an amount of Rs.5,000/- (Rupees five thousand) as costs before the Sub Court, Palakkad within fifteen days, failing which the writ petition stands dismissed. Writ Petition is disposed of as above. Sd/- HARUN-UL-RASHID, Judge. kcv.