IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 224 of 2003()
1. MADI SRE VADUKUNNU SIVAKSHETHRAM,
... Petitioner
Vs
1. THE EXECUTIVE OFFICER, CHIRAKKAL
... Respondent
2. THE COMMISSIONER, H.R.AND C.E. (ADMN.)
For Petitioner :SRI.P.S.KRISHNA PILLAI
For Respondent :SMT.VIDHYA. A.C
The Hon'ble MR. Justice P.R.RAMAN
Dated :25/05/2009
O R D E R
P.R. RAMAN & P. BHAVADASAN, JJ.
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F.A.O. 224 OF 2003
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DATED THIS, THE 25TH DAY OF MAY, 2009.
J U D G M E N T
Bhavadasan, J.
In this appeal, petitioner before the court below in I.A. 1261/2002
challenges the dismissal of his petition filed under Order 9 Rule 9 and
Section 151 of the Code of Civil Procedure, seeking to restore the suit to
file which was dismissed for default.
2. In the suit, the petitioner has sought for a declaration that the
proceedings initiated by the defendants under Section 87 of the H.R. & C.E.
Act against him on the basis of an application dated 19.9.1998 submitted by
the first defendant is illegal, null and void and for a permanent injunction
restraining the defendants from interfering with the management of Madai
Sree Vadukunnu Siva Temple. The suit was listed for trial to 13.9.2002. It
appears that there was an Interim Application for temporary injunction
which was dismissed by the trial court . Petitioner challenged the same in
appeal before the District Court . According to the petitioner, he had not
taken the pre-trial steps under the bona fide impression that the records were
called for by the District Court and therefore, he filed an application on
F.A.O. 224/2003 :2:
13.9.2002 to which day the suit was listed for trial, praying to remove the
case from the special list for trial. The trial court declined to grant the
prayer and dismissed the suit for default. Immediately thereafter,
petitioner/plaintiff sought for restoration of the suit by filing I.A.1261/2002.
3. It should be noticed that the petitioner had moved the application
for adjournment on the date on which the case was posted for trial. It was
not as though that he was not diligent in prosecuting the suit though
immediately on the dismissal of the suit for default, he could have moved
for restoration. However, in the interest of justice, we think the appellant/
petitioner should be given an opportunity to contest his case and any loss
caused to the respondents herein should be compensated by awarding costs.
In the result, the appeal is allowed on condition that a sum of Rs.
1,500/- (Rupees One thousand five hundred) is paid by the appellant to the
respondents towards costs within one month from today, failing which the
appeal shall stand dismissed.
P.R. RAMAN, JUDGE.
BHAVADASAN, JUDGE.
KNC/-