IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP(C).No. 1138 of 2010(O)
1. C.VIJAYAMOHANAN NAIR,
... Petitioner
Vs
1. KOTTARAKKARA GRAMA PANCHAYATH
... Respondent
2. RADHAKRISHNAN NAIR, MANGALATHU VEEDU,
For Petitioner :SMT.P.S.PREETHA
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :14/12/2010
O R D E R
THOMAS P. JOSEPH, J.
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O.P.(C) Nos.1138, 1142 and 1149 of 2010
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Dated this the 14th day of December, 2010.
JUDGMENT
Petitioner filed three suits – O.S. Nos.131 of 2001, 81 of 2003 and 492 of
2004 against the respondents herein. Common case is that respondent No.2
onwards, reclaiming their paddy land into garden land constructed buildings
therein encroaching into plaint A schedule which according to the petitioner is a
road vested with the Kottarakkara Grama Panchayat (respondent No.1 in O.P.
(C) Nos.1138 of 2010 and 1149 of 2010). In the suits, petitioner prayed for
various reliefs including a decree for prohibitory injunction against the local
authority issuing building permits to the land owners concerned and for a
direction to them to remove the building constructed in violation of the Building
Rules and encroaching into the Panchayat road. It is the case of petitioner that
the local authority remained ex parte in all the suits and at the time of trial some
of the other defendants also remained absent and did not cross-examine the
petitioner (examined as PW1). There was only the evidence let in by petitioner.
But, learned Munsiff declined to grant relief to the petitioner even as against ex
parte defendants and dismissed the suits. Alleging that there was error apparent
on the face of record, petitioner filed applications for review (I.A.No.3172 of
2009, 3173 of 2009 and 3170 of 2009 respectively in these petitions) of the
judgment. Those applications were dismissed by the learned Munsiff observing
that there is no error apparent on the face of record or other sufficient reason
OP(C) Nos.1138,1142 & 1149/2010
2
justifying review. Those orders are under challenge. Learned counsel has
asserted the arguments raised in the review petitions and contended that court
below did not consider the question whether the road is vested in the local
authority. According to the learned counsel finding of learned Munsiff that the
road was not taken up by the local authority is against the evidence on record.
2. Exhibit P2 in O.P.(C) No.1149 of 2010 is the common judgment. It
is seen that learned Munsiff has considered the case on merit and found for the
reasons stated in the common judgment that petitioner is not entitled to the
reliefs prayed in the suits. That any of the respondents remained absent is not
by itself a reason to pass a decree against them. The law applicable is Rule 11
of Order IX of the Code of Civil Procedure (for short, “the Code”). Under that
provision even if some of the defendants do not appear the suit is to be
proceeded and the court has to pass appropriate orders concerning the ex parte
defendants at the time of disposal of the suit. It is also not as if the court is
bound to pass a decree when the defendants are ex parte, in favour of the
plaintiff. Rule 6 of Order IX of the Code says that the court may proceed against
the defendants ex parte. If the court below passed a considered judgment and if
the judgment is not correct remedy is to prefer appeal as provided under law.
That is because a review petition is a not a substitute for an appeal nor is an
opportunity to re-hear the suit. Learned Munsiff observed that there is no error
apparent on the face of record or other sufficient reason justifying review of
OP(C) Nos.1138,1142 & 1149/2010
3
common judgment. Having gone through the common judgment (Ext.P2 in O.P.
(C) No.1149 of 2010), order on the applications for review an on hearing
learned counsel I do not find any infirmity in the impugned orders.
Resultantly these petitions are dismissed without prejudice to the right of
petitioner to challenge the common judgment and decree as provided under law.
THOMAS P.JOSEPH,
Judge.
cks