IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 12264 of 2007(I)
1. KAJIBI, AGED 60 YEARS,
... Petitioner
Vs
1. THE SPECIAL TAHSILDAR,(LA) RAILWAY,
... Respondent
2. THE DEPUTY CHIEF ENGINEER,
For Petitioner :SRI.C.MURALIKRISHNAN (PAYYANUR)
For Respondent :SRI.SUBAL J.PAUL, SC, RAILWAYS
The Hon'ble MR. Justice K.PADMANABHAN NAIR
Dated :11/04/2007
O R D E R
K. PADMANABHAN NAIR, J.
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W.P(C) NO. 12264 OF 2007
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Dated this the 11th day of April, 2007
J U D G M E N T
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Heard. Admitted. Learned Government Pleader took notice
for the first respondent and Standing Counsel for the Railways for
the second respondent. The Writ Petition itself is heard and
disposed of as agreed to by both parties.
2. Petitioner’s property was acquired for a public
purpose. He received the compensation under protest and filed
an application for referring the case for enhancement of
compensation. The case was referred to the Sub Court and on
receipt of the records, the same was numbered as LAR No.30 of
2003. The case was posted for trial in the special list on
10.3.2006. On that day the petitioner was absent. Learned Sub
Jude dismissed the LAR for default. Petitioner filed an
application, I.A. No.469 of 2006, under Order IX Rule 9 CPC for
restoration of the LAR dismissed for default. The Sub Judge by
order dated 14.7.2006 allowed the application. But it was a
conditional order. It was ordered that the petitioner must remit
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a sum of Rs.2,000/- before the District Legal Services Authority
and shall produce the receipt on or before 18.7.2006 for
restoring the LAR. Petitioner did not deposit the amount in time.
On the other hand, petitioner filed another application, I.A.
No.693 of 2006, for enlargement of time for deposit. Learned Sub
Judge had dismissed that application and the petition for
restoration. Challenging those orders, this Writ Petition is filed.
3. Learned Sub Judge allowed the restoration application
finding that there was at least some reason for the non-
appearance of the petitioner on the date on which the LAR was
posted for trial. He passed a conditional order by which the
petitioner was directed to pay Rs.2,000/- before the DLSA. That
order was passed on 14.7.2006. Petitioner was directed to
deposit the amount by 18.7.2006. So, virtually, the petitioner got
only 3 days’ time to comply with the order passed by the Sub
Judge. When the court passes a conditional order, it is the duty of
the court to see that some reasonable time is given to the party
against whom the order is passed to comply with the same. The
learned Sub Judge ought to have considered the practical
difficulties in the matter, such as giving information to the party
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by the lawyer and availability of fund, etc. Hence I am of the
view that the orders passed by the learned Sub Judge in I.A.
Nos.469 and 693 of 1993 (restoration of the LAR and
enlargement of time for deposit respectively) are liable to be set
aside.
4. In the result, the orders passed by the learned Sub
Judge, Hosdurg dismissing I.A. Nos.469 and 693 of 2006 in LAR
No.30 of 2006 are hereby set aside. Petitioner is given time till
31.5.2007 to pay the amount directed to be deposited. If the
petitioner deposits the cost ordered before the DLSA within the
time granted as per this judgment, I.A.No. 469 of 2006 will stand
allowed in which case, the learned Sub Judge shall restore LAR
No.30 of 2003 back to file and dispose of the same in accordance
with law.
Writ Petition is disposed of as above.
K. PADMANABHAN NAIR, JUDGE.
vsv
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K. PADMANABHAN NAIR, J.
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M.F.A. NO. OF
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J U D G M E N T
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9TH APRIL, 2007