IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 2410 of 2009(J)
1. KOONATHIL KUMARAN, S/O.KARI @ APPUKUTTY,
... Petitioner
Vs
1. CHINAPARAMBIL ALEEMA, @ KUNHIMA,
... Respondent
2. MUNDUVALAPPIL KUNHIPPA @ MOHAMMED,
3. RAMANALILKUNNATH FATHIMMA, D/O.BAVA,
4. RAMANALILKUNNATH SAINABA,
5. CHEENIPARAMBIL KUNHIPPA, S/O.BEERAN,
For Petitioner :SRI.K.K.MOHAMED RAVUF
For Respondent :SRI.K.RAMACHANDRAN
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :22/05/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).NO.2410 OF 2009 (J)
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Dated this the 22nd day of May, 2009
J U D G M E N T
This writ petition is filed under Article 227 of the
Constitution of India seeking the following reliefs:-
i. to issue a writ of certiorari or any other
appropriate writ, order or direction
quashing Ext.P5 order.
ii. to allow Ext.P2 application and restore
the suit O.S.No.284 of 2001 of the Munsiff
Court, Tirur, and direct the learned
Munsiff to hear and dispose of the same on
merits.
iii. to grant such other reliefs as may be
prayed for and which this Honourable
Court may deem fit and proper to grant in
the circumstances of the case.
Petitioner is the plaintiff in O.S.No.284/2001 on the file of the
Munsiff Court, Tirur. Suit was dismissed for default. An
application moved by the petitioner under Order IX Rule 9 of
WPC.2410/09 2
CPC, after enquiry, was dismissed by the learned Munsiff as
the materials tendered by the petitioner was found not
satisfactory to hold that he had sufficient cause for
non appearance, when the suit was posted in the special list
for trial. Appeal preferred by the petitioner against the order
of the learned Munsiff was also unsuccessful as the learned
Sub Judge concurred with the conclusion reached by the
learned Munsiff. The petitioner, has, therefore, filed this writ
petition seeking the indulgence of this Court to have a
decision on his suit on merits.
2. I heard the learned counsel for the petitioner and
also, for the respondents/defendants in the suit. The
application for restoration of the suit was filed within time and
the reasons found by the learned Munsiff and also the learned
Sub Judge to conclude that the petitioner had not shown
sufficient cause for his non appearance are not correct, is the
submission of the counsel for the petitioner. The application
was dismissed forming a conclusion that the petitioner had not
shown sufficient cause since evidence of PW2, the doctor,
who issued the certificate and treated the petitioner, was
found not credible and convincing to the court, submits the
WPC.2410/09 3
counsel. It is further submitted that PW2 practices traditional
indigenous medicine and his educational qualification should
not have been given much weight in appreciating his
evidence. At any rate, the evidence of PW1 showing the cause
for his absence should have been accepted to restore the suit
to file, is the submission of his counsel. Stoutly resisting the
reliefs claimed in the petition, learned counsel for the
respondents contended that there is no merit in the cause
pleaded, and, in fact, the materials tendered was rightly and
correctly found by the trial Judge and also the Sub Judge, not
sufficient to form the conclusion that the petitioner/plaintiff
had reasonable excuse for his absence. True, the materials
tendered by the petitioner was deficient, but, in examining the
question whether the petitioner has sufficient cause for his
absence, what is to be looked into is whether there were
culpable laches or negligence for his non appearance. Even if
there are some laches or negligence, that should not to be
given much weightage because the courts as instrumentalities
of justice are expected to enter decision on merits as far as
possible, and not without hearing the opposite party. Having
regard to the submissions made and taking note of the facts
and circumstances involved and also that the suit instituted in
WPC.2410/09 4
the year 2001 is sought to be restored to file, I am of the view
that one more opportunity can be extended to the plaintiff
subject to terms compensating the injuries likely to be caused
to the respondents. So much so, it is ordered that the suit
shall stand restored to file, on condition of petitioner/plaintiff
paying a sum of Rs.5,000/- to the respondents, within one
month from the date of receipt of a copy of this judgment.
Sum fixed above shall be paid to the counsel for the
respondents within the time stipulated. If payment is not
made within the time ordered, the writ petition shall stand
dismissed without any further orders. For report on payment,
post after one month.
Petition is disposed accordingly.
S.S.SATHEESACHANDRAN
JUDGE
prp
S.S.SATHEESACHANDRAN, J.
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CRL.R.P.NO. OF 2006 ()
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O R D E R
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23rd March, 2009