IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 33491 of 2006(K)
1. PADMAKSHIAMMA, D/O. PONNAMMA,
... Petitioner
Vs
1. P.ABUBAKERKUNJU,
... Respondent
For Petitioner :SRI.R.S.KALKURA
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :18/12/2006
O R D E R
M.SASIDHARAN NAMBIAR, J.
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W.P.C.NO.33491 OF 2006 (K)
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Dated this the 18 th day of December, 2006.
JUDGMENT
Petitioner is defendant in O.S.839/92 on the file of
IInd Additional Munsiff Court, Thiruvananthapuram. Respondent
is plaintiff. Suit was for redemption of the mortgage and
consequential reliefs. In that suit petitioner claimed benefits
under the Kerala Land Reforms Act. Suit was referred to Land
Tribunal under Section 125(3) of the Kerala Land Reforms Act.
Before that order an order of injunction was granted which was
challenged before the Appellate court in C.M.A.51/96. When the
reference case was pending before Land Tribunal, learned Munsiff
dismissed the suit for non appearance of respondent.
Subsequently reference was answered. C.M.A.51/96 disposed as
petitioner withdraw the same. Respondent filed I.A.38/03 and
51/03 before the Munsiff Court, for restoration of suit after
condoning the delay. learned Munsiff under Ext.P3 order
dismissed the application. Respondent challenged that order
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before District Court, Thiruvananthapuram in C.M.A.47/04.
Under Ext.P4 order, learned District Judge allowed the appeal and
restored the suit on condition of payment of cost of Rs.1,500/-
to be paid or deposited within one week from 24.5.06.
Respondent did not deposit that amount within seven days as
directed under Ext.P4. I.A.1553/06 was filed for extending the
time for depositing the cost. Under Ext.P10 order, that was
allowed. This petition is filed under Article 227 of Constitution of
India to challenge Ext.P10 order.
2. Learned counsel appearing for petitioner was heard.
3. Argument of learned counsel appearing for petitioner
was that under Ext.P4 order, learned District Judge directed
payment or deposit of cost within one week providing that on
such payment or deposit, the suit shall be restored. The order
does not further provide that on failure to pay or deposit the
amount, the appeal will stand dismissed. Learned Additional
District Judge under Ext.P9, received payment made by the
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respondent out of time and allowed the C.M.A47/04 and restored
the suit. On the facts and circumstances of the case, I do not
find any reason to interfere with the order in exercise of the extra
ordinary jurisdiction of this court under Article 227 of constitution
of India, as the bye product of the order is only justice.
M.SASIDHARAN NAMBIAR,
JUDGE.
bkn