IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 1042 of 2006()
1. KOCHUTHRESIA, W/O.JOY,
... Petitioner
Vs
1. ABHILASH, S/O.SIVAN,
... Respondent
For Petitioner :SRI.C.A.CHACKO
For Respondent :SMT.P.V.KOCHUTHRESIA
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :12/02/2009
O R D E R
P.N.Ravindran, J.
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C.R.P. No.1042 of 2006
=====================
Dated this the 12th day of February, 2009.
ORDER
The plaintiff in O.S.No.219 of 2004 on the file of the Court of the
Munsiff of Cochin is the revision petitioner. The respondent is the
defendant therein.
2. The suit instituted by the petitioner is one for fixation of the
boundaries of the plaint A schedule property and for a permanent
prohibitory injunction restraining the defendant from making any
construction in plaint B schedule property belonging to him, encroaching
upon the plaint A schedule property. In the suit, the plaintiff was
represented by Sri.Abraham Thomas, who is regularly practicing at North
Paravur. The suit stood posted to 9.11.2005 for the evidence of the
plaintiff. The plaintiff was not present on that day. The learned counsel
appearing for the plaintiff was also not present, according to the
plaintiff, for the reason that both of them were not aware of the posting
of the case on 9.11.2005. When the clerk engaged by the plaintiff’s
counsel came to know that the suit was listed he had engaged another
lawyer to seek an adjournment of the suit by two days. According to the
petitioner, the learned Munsiff did not grant the said request and
dismissed the suit for default on 9.11.2005. On 11.11.2005, the
petitioner filed I.A.No.2503 of 2005 to restore the suit to file. The
CRP 1042/06 -: 2 :-
application was supported by an affidavit sworn to by the petitioner
wherein it was stated that the plaintiff and her counsel were not aware of
the posting of the suit on 9.11.2005, that on coming to know of the
posting, the clerk engaged by the plaintiff’s counsel had made
arrangements to seek an adjournment by two days, that the said request
was declined and thereupon the suit was dismissed for default. The court
below ordered notice to the defendant on I.A.No.2503 of 2005. Though
notice was served, the defendant did not appear. However, by order
passed on 5.12.2005, the court below dismissed the application holding
that no valid grounds have been made out to restore the suit. Hence this
Civil Revision Petition.
3. In this Civil Revision Petition, the petitioner challenges the
correctness of the order passed by the court below dismissing
I.A.No.2503 of 2005. I have considered the submissions made at the Bar
by Smt.C.M.Charisma, the learned counsel appearing for the petitioner.
There was no representation for the respondent when the case was called
on for hearing. In my opinion, as the defendant had not appeared and
opposed I.A.No.2503 of 2005 and the application for restoration of the
suit was filed within two days from the date on which it was dismissed for
default, the court below ought to have allowed the application and
restored the suit to file. The suit is one for fixation of boundaries and
for a permanent prohibitory injunction restraining the defendant from
making any construction in his property by encroaching into the
CRP 1042/06 -: 3 :-
plaintiff’s property. In the nature of the dispute also, the court below
ought to have, in my opinion, afforded the plaintiff an opportunity to
have the dispute resolved on the merits.
4. In the result, I allow the Civil Revision Petition, set aside the
order passed by the court below dismissing I.A.No.2503 of 2005 and
restore the suit O.S.No.219 of 2004 to file. The court below shall take
back the suit to file, issue notice to the defendant and try and dispose of
the suit expeditiously. The plaintiff shall appear before the court below
on 16.3.2009.
P.N.Ravindran,
Judge.
ess 16/2
