IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 441 of 2008()
1. SASIKUMAR, S/O.DAMODARAN,
... Petitioner
Vs
1. C.R.OMANA, D/O.CHARUVILAYIL RAGHAVAN,
... Respondent
2. DAMODARAN, S/O.KELU,
3. DEVAKI, D/O.KUTTIMAN,
4. INDULEKHA, D/O.DAMODARAN,
5. AMBILI, D/O.DAMODARAN,
For Petitioner :SRI.T.KRISHNANUNNI (SR.)
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :11/06/2008
O R D E R
M.SASIDHARAN NAMBIAR, J.
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C.R.P.No.441 of 2008
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Dated this the 10th June, 2008.
O R D E R
Petitioner is the 5th defendant in I.A.No.1761/2007 in
O.S.No.24/2004, on the file of Munsiff Court, Parappanangadi. It was
an application filed under Rule 9 of Order IX of Code of Civil
Procedure. This petition is filed challenging the order, dated
11.4.2008, where under the said petition was allowed and suit was
restored to file. The case of the petitioner is that learned Munsiff
should not have restored the suit as valid and sufficient reasons are
not shown. The impugned order shows that suit was dismissed for
default on the day when the suit was included in the special list.
Thereafter, plaintiff filed I.A.No.1761/2007 to restore the suit.
Learned Munsiff, after taking into consideration evidence of respondent
as PW.1 and the Doctor who issued Ext.A1 medical certificate as PW.2,
found that there is sufficient cause for the failure of the petitioner to
appear and restored the suit. Even though petitioner challenged
Ext.A1 medical certificate and the evidence of PW.2 on the ground that
the first respondent attested a document at Parappanangadi travelling
C.R.P.No.441/2008
2
25 Kms., it was not accepted by the learned Munsiff.
2. The learned Senior counsel argued that Munsiff
should not have accepted the case of the first respondent that he
could not appear and adduce evidence because of illness. It was
argued that Ext.A1 cannot be relied on.
On going through the impugned order, I do not find any
reason to interfere with the discretion exercised by Munsiff, especially
when by that order, trial court has only allowed the plaintiff to have a
decision on merit. Petition is dismissed.
M.SASIDHARAN NAMBIAR,
JUDGE
nj.