IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 30664 of 2009(O)
1. ABDUL VAHID, AGED 55 YEARS,
... Petitioner
Vs
1. AHAMED KABEER, AGED 62 YEARS,
... Respondent
2. JALALUDEEN, AGED 49 YEARS,
For Petitioner :SRI.M.SHAHEED AHMAD
For Respondent :SRI.K.SUBASH CHANDRA BOSE
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :29/09/2010
O R D E R
HARUN-UL-RASHID,J.
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W.P.(C). NO. 30664 OF 2009
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DATED THIS THE 29TH DAY OF SEPTEMBER, 2010
JUDGMENT
Plaintiff in O.S.No.117/2004 on the file of the Sub
Court, Kollam is the petitioner herein. Respondents herein are the
defendants in the suit. Parties are brothers. The suit was filed for
partition of the plaint schedule properties. Ext.P1 is the copy of
the plaint and Ext.P2 is the copy of the written statement. On the
basis of the pleadings, the court below framed two preliminary
issues; whether the suit is maintainable and whether the valuation
of the suit and the court fee paid are correct. When the matter was
posted for hearing on the preliminary issues, the plaintiff was
continuously absent. Hence, the court below passed Ext.P4
judgment dismissing the suit. In Ext.P4 judgment the court
observed that the learned counsel for the plaintiff did not appear
before the court on several prior occasions, that the plaintiff is not
vigilant in prosecuting the case and in such circumstances, the
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court is not in a position to proceed with the matter.
2. The learned counsel for the plaintiff submitted that
the suit was posted for hearing on 26/8/2008. The learned counsel
sought for adjournment of the case. But the learned Sub Judge did
not grant adjournment and passed Ext.P4 judgment on the same
day. The learned Counsel also submitted that in fact there was
representation on 26/8/08 and the same was stated in Ext.P4. He
pleaded that an opportunity may be given to the plaintiff to
prosecute the case. The suit was for partition. The defendants are
brothers of the plaintiff. It is true that there is laches on the part of
the plaintiff in prosecuting the case vigilantly. Finding that there is
no co-operation on the side of the plaintiff the court below
dismissed the suit. The learned counsel for the petitioner submitted
that the suit is for partition and if Ext.P4 judgment is not set aside,
the plaintiff in the suit will be put to severe hardship and irreparable
injury. The learned counsel also submitted that the plaintiff
changed the counsel, who appeared originally before the trial court
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and that an opportunity may be given to the plaintiff to prosecute
the case without any fault.
3. In the circumstances, for the reason that the suit was
dismissed for default and there was no consideration of the case of
the plaintiff on merits, this Court is of the view that an opportunity
shall be given to the plaintiff to prosecute his case before the court
below. In the circumstances, Ext.P4 judgment is set aside. The
Sub Court, Kollam is directed to proceed with the suit.
Writ petition is disposed of as above.
Sd/-
HARUN-UL-RASHID,
Judge.
kcv.
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