IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP No. 2617 of 2001()
1. MOIDEENKUTTY
... Petitioner
Vs
1. VEERAN
... Respondent
For Petitioner :SRI.SANTHEEP ANKARATH
For Respondent :SRI.V.CHITAMBARESH
The Hon'ble MR. Justice K.T.SANKARAN
Dated :29/01/2008
O R D E R
K.T. SANKARAN, J.
...................................................................................
C.R.P. No. 2617 OF 2001
...................................................................................
Dated this the 29th January, 2008
O R D E R
The revision petitioner filed O.S.No. 342 of 1993 on the file of the court of the
Munsiff, Ottappalam against the respondents for a declaration that the decree in O.S.
No. 56 of 1985 on the file of the Sub Court, Ottappalam is not binding on the plaintiff or
plaint schedule property. There was also a prayer for consequential injunction. When
the suit was listed for trial on 18.08.1998, the revision petitioner failed to appear. The
suit was dismissed for default. I.A.No. 1769 of 1998 was filed by the revision petitioner
under Rule 9 Order IX of the Code of Civil Procedure. That application was posted on
14.12.1998. On the ground that the petitioner was not ready and that he was absent,
I.A.No. 1769 of 1998 was dismissed by the order dated 14.12.1998. The revision
petitioner filed C.M.A.No. 2 of 1999 before the Sub Court, Ottappalam challenging the
order of the trial court. The appellate court dismissed the appeal.
2. The appellate court considered the question as to whether the petitioner was
prevented by sufficient cause from appearing in the court on 18.08.1998 and held that
the case put forward by the petitioner does not appear to be true .
3. The learned counsel for the revision petitioner submitted that the courts below
should have granted an opportunity to the petitioner to prosecute the suit on the merits.
The learned counsel for the 4th respondent submitted that there is no scope for allowing
the petitioner to prosecute the suit or to prosecute the application for restoration of the
suit in view of subsequent developments. He submitted that the 4th respondent filed
O.S.No. 58 of 2000 on the file of the court of the Munsiff, Ottappalam for a permanent
C.R.P. No. 2617 OF 2001
2
prohibitory injunction against the plaintiff and defendant Nos. 1 to 3. The first
respondent herein, viz., Veeran had filed O.S.No. 89 of 2000 before the Munsiff’s Court,
Ottappalam for a declaration that the decree in O.S.No. 56 of 1985 on the file of the
Sub Court, Ottappalam is not binding on him. It is submitted that O.S.Nos. 58 of 2000
and 89 of 2000 were tried together and were disposed of by a common judgment.
dated 19.07.2004, by which the suit filed by the 4th respondent was decreed and the
suit filed by the first respondent was dismissed. It is also submitted by the learned
counsel for the 4th respondent that the revision petitioner was a party in O.S.No. 58 of
2000 and 89 of 2000. The learned counsel for the 4th respondent also submitted that
the revision petitioner had filed O.S.No. 132 of 1993 on the file of the Munsiff’s Court,
Ottappalam for partition of the present plaint schedule property. O.S.No. 132 of 1993
was dismissed for default on 18.08.1998 and that decision has become final. The
learned counsel for the 4th respondent submitted that in the light of subsequent
developments no useful purpose would be served by restoration of the present suit,
viz. O.S.No. 342 of 1993. The learned counsel also pointed out that O.S.No. 342 of
1993 was filed before the Munsiff’s Court, while the decree in respect of which the
declaration was sought, was passed by the Sub Court and therefore, the suit is hit by
Section 41(b) of the Specific Relief Act .
4. It is not necessary to decide the aforesaid contentions in this revision. I am
of the view that an opportunity could be granted to the petitioner to prosecute I.A.No.
1769 of 1998. Granting of such an opportunity is not unconditional. The petitioner has
to pay a sum of Rs. 1500/- (Rupees one thousand and five hundred only) as cost to
the 4th respondent within a period of one month from today. If he fails to pay the cost,
the Civil Revision Petition will stand dismissed.
C.R.P. No. 2617 OF 2001
3
For the aforesaid reasons, the order dated 14th December, 1998 passed by the
trial court and the judgment dated 22nd May, 2001 passed by the lower appellate court
are set aside. I.A.No. 1769 of 1998 is restored to file on condition that the petitioner
shall pay a sum of Rs. 1500/- as cost to the 4th respondent within a period of one month
from today. On payment of the cost, the trial court shall dispose of I.A.No. 1769 of 1998
on the merits. It is made clear that the 4th respondent would be entitled to raise all the
contentions, which are referred to above, before the trial court.
K.T. SANKARAN,
JUDGE.
lk
C.R.P. No. 2617 OF 2001
4
K.T. SANKARAN, J.
………………………………………………..
C.R.P. No. 2617 OF 2001
…………………………………………………
Dated this the 29th January, 2008
O R D E R