High Court Kerala High Court

Abdul Muthalib vs Aley on 5 June, 2009

Kerala High Court
Abdul Muthalib vs Aley on 5 June, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 15391 of 2009(O)


1. ABDUL MUTHALIB, S/O.MUHAMMED,
                      ...  Petitioner

                        Vs



1. ALEY, W/O.MATHAI, KAROTTUPULLOLI HOUSE,
                       ...       Respondent

2. MATHAI, S/O.MATHAI,KAROTTUPULLOLI HOUSE,

3. K.M.THOMAS, S/O.MATHAI,KAROTTUPULLOLI

4. K.M.MATHEW, S/O.MATHAI, KAROTTUPULLOLI

5. K.M.CHACKO, S/O.MATHAI,KAROTTUPULLOLI

6. AMMINI SEBASTIAN, D/O.MATHAI,

7. K.M.KURIAN, S/O.MATHAI,

                For Petitioner  :SRI.K.S.HARIHARAPUTHRAN

                For Respondent  : No Appearance

The Hon'ble MR. Justice S.S.SATHEESACHANDRAN

 Dated :05/06/2009

 O R D E R
                    S.S.SATHEESACHANDRAN, J.
                    -----------------------------------
                   W.P.(C).Nos.15391 of 2009 - O
              -----------------------------------------------
                 Dated this the 5th day of June, 2009

                             J U D G M E N T

The writ petition is filed under Article 227 of the

Constitution of India seeking the following reliefs:

“i) To call for the records which lead to the issuance

of Ext.P3 and to issue a writ in the nature of certiorari

or other appropriate writ, order or direction quashing

the same.

ii) To issue appropriate directions to the court below

to allow Exts.P1 and P2 without imposing any cost and

to restore O.S.No.218/1996 on its file for disposal on

merits.”

2. Petitioner is the plaintiff in O.S.NO.218/1996 on the

file of Sub Court, Pala which was dismissed for default for the

absence of plaintiff on the date of hearing. He moved an

application for restoration of suit under Order IX Rule 9 CPC. It

was allowed on terms. The terms having not been complied with

the petition was dismissed. Producing the order passed by the

court imposing cost but not the subsequent order dismissing the

suit, petitioner has filed this writ petition invoking supervisory

jurisdiction of this Court to issue a writ/order to restore his suit to

file.

W.P.(C).Nos.15391 of 2009 – O

2

3. I heard the counsel for the petitioner.

4. Having regard to the submissions made, I find that the

petitioner has an alternative efficacious remedy by way of appeal

against the order passed dismissing his application for restoration

of the suit, and as such the writ petition is not maintainable. The

writ petition is dismissed without prejudice to the right of the

petitioner to take appropriate proceedings to challenge the order

passed dismissing his application for restoring the suit, if so

advised. The period during which the writ petition was

prosecuted will be taken into account by the court below, if any

appeal is filed, and appropriate orders will be passed with respect

to condonation of delay following the provisions covered by

Section 14 of the Limitation Act.

The writ petition is dismissed as indicated above.

S.S.SATHEESACHANDRAN,
JUDGE.

bkn/-