IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 197 of 2009()
1. KOCHALATHU THANKA, AGED 60 YEARS,
... Petitioner
2. RAJAN, AGED 42 YEARS, S/O.NARAYANAN,
3. BINDU, AGED 42 YEARS, S/O.NARAYANAN,
4. SINDHU, AGED 37 YEARS, D/O.NARAYANAN,
5. DHANYA, AGED 33 YEARS, D/O.NARAYANAN,
6. SANDYA, AGED 32 YEARS, D/O.NARAYANAN,
7. SAJEESH, AGED 31 YEARS, S/O.NARAYANAN,
Vs
1. BALAN, AGED 57 YEARS, S/O.RAMAN,
... Respondent
For Petitioner :SRI.JACOB ABRAHAM
For Respondent : No Appearance
The Hon'ble MR. Justice K.T.SANKARAN
Dated :18/03/2009
O R D E R
K.T.SANKARAN, J.
------------------------------------------------------
C.R.P. NO. 197 OF 2009
------------------------------------------------------
Dated this the 18th March, 2009
O R D E R
The respondent filed O.S.No.59 of 2001, on the file of the Court of
the I Additional Sub Judge, Kozhikode, against the petitioners. The suit
was dismissed for default. The respondent filed an application under
Order IX Rule 9 of the Code of Civil Procedure. The trial court by the
order dated 17.7.2008, dismissed that application. On appeal by the
respondent (C.M.A.No.68 of 2008), the appellate court set aside the order
passed by the trial court and allowed the application under Order IX Rule
9 of the Code of Civil Procedure. The Civil Revision Petition is filed
challenging the judgment in C.M.A.No.68 of 2008, District Court,
Kozhikode.
2. The suit was posted for trial on 1.2.2008. The suit was
dismissed on that date on the ground that the plaintiff did not file the proof
affidavit (chief affidavit). The plaintiff had filed an application for transfer
of the case to be tried along with O.S.No.413 of 2005, pending before the
III Additional Sub Court, Kozhikode. The Transfer Petition was posted to
2.2.2008. On 31.1.2008, an application was filed by the plaintiff to stay
the suit till the disposal of the Transfer Petition. However, the trial court
C.R.P. NO. 197 OF 2009
:: 2 ::
dismissed the application and also dismissed the suit for default. The trial
court held, while dismissing the application under Order IX Rule 9 of the
Code of Civil Procedure, that the suit happened to be dismissed on
account of the wilful laches and negligence on the part of the plaintiff.
The Appellate Court considered the facts and circumstances of the case
and held that an opportunity should be afforded to the plaintiff to
prosecute the suit on the merits. Discretion was exercised by the court to
allow the application under Order IX Rule 9 of the Code of Civil
Procedure. Normally, discretion exercised by the court in allowing the
application for restoration of the suit would not be interfered with in
Revision under Section 115 of the Code of Civil Procedure. I do not think
that the court below has committed any error in allowing the application.
There is no scope for interference in Revision.
The Civil Revision Petition is accordingly dismissed.
(K.T.SANKARAN)
Judge
ahz/