IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 8364 of 2008(U)
1. V.M.MOHAMMED RAFEEQ
... Petitioner
Vs
1. PURUSHOTHAMAN, S/O.KUTTACHAN
... Respondent
2. MONEY, S/O.THEVAN, POOPADITHARA HOUSE
For Petitioner :SRI.V.L.SHENOY
For Respondent :SRI.N.N.SUGUNAPALAN (SR.)
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :09/06/2008
O R D E R
HARUN-UL-RASHID, J.
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W.P.(C)NO.8364 OF 2008
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Dated this the 9th day of June, 2008
JUDGMENT
This Writ Petition is filed by the first defendant in O.S. No.135 of
1999 on the file of the Principal Munsiff’s Court, Cherthala. The relief
sought for in the Writ Petition is for issuance of a Writ of Certiorari to
quash Ext.P6 order.
2. The suit was filed by the first respondent herein who is the
plaintiff in the suit for damages and malicious prosecution. The damages
claimed is Rs.1,00,000/-. According to the plaintiff , the first defendant
misusing, abusing and acting beyond his official capacity registered false
case against him and others under Sections 143, 147, 148, 323 and 324
I.P.C. as C.C. No.435 of 1995. The first defendant filed an application,
I.A. No.2878 of 2005 requesting the court to adjudicate the question of
limitation as a preliminary issue. The said application was posted to
1.10.2005 for filing objections. The case was then adjourned to
13.10.2005, 14,10,2005 and again on 17.10.2005 for objection and
W.P.(C)NO.8364/2008 2
hearing. On 17.10.2005, the plaintiff filed objection and the court posted
the case to 18.10.2005. The matter was heard on 18.10.2005 and the case
was posted to 19.10.2005, 20.10.2005 and again on 21.10.2005 for orders.
On 21.10.2005, the application was allowed and the court posted the suit
to 27.10.2005 for final hearing on the question of preliminary issue. The
matter was again adjourned to 29.10.2005. The matter was heard on
29.10.2005 and posted to 31.10.2005 for orders. On 31.10.2005, the court
below passed Ext.P1 judgment considering the question elaborately and
deciding the case on merits. By Ext.P1 judgment, the court below
dismissed the suit finding that the suit is barred by limitation.
3. From the order sheet which I have referred to above, it can be
seen that opportunity was given to both sides for filing pleadings and
adducing evidence. Ultimately, the case was heard on 29.10.2005 and
Ext.P1 judgment was passed on 31.10.2005. The trial court after referring
to the provisions of the Limitation Act and the Kerala Police Act held that
the Kerala Police Act provides for a prescribed period for instituting a suit
for malicious prosecution against a police officer. The court below
extracted the relevant portion of the Kerala Police Act and held that the
cause of action of the suit arose prior to the date of charging of C.C.
No.435 of 1995 and that the present suit is filed on 11.2.1999. According
W.P.(C)NO.8364/2008 3
to the learned Judge, the suit was barred by limitation. The judgment
dismissing the suit was not challenged by the plaintiff by filing an appeal.
On 17.112005, the plaintiff filed I.A. No.3478 of 2005 stating that the
judgment and decree dated 31.10.2005 was passed ex parte and prayed for
restoration of the suit. In the affidavit filed in support of the application,
it is stated that the suit was dismissed for default and hence the same may
be restored to file under Order IX Rule 9 C.P.C.
4. I have gone through Ext.P1 judgment and I find that the
contentions of both sides were considered by the court below. The
plaintiff without any bona fides filed Ext.P3 application supported by the
affidavit for restoration of the suit as if the suit was dismissed for default.
I find that the suit was decided on merits and if the plaintiff was aggrieved
by the decision, he should have taken up the matter in appeal. Ext P3
application filed for restoration of the suit is , therefore, misconceived and
unsustainable. The trial court as per Ext.P6 order allowed the application
for restoration of the suit. Ext.P6 order is under challenge in this Writ
Petition at the instance of the first defendant.
5. I have already narrated the nature of the judgment of the trial
court and the non maintainability of the application under Order IX Rule 9
W.P.(C)NO.8364/2008 4
C.P.C. Ext.P6 order is, therefore, illegal. Accordingly, I quash Ext.P6
order passed by the court below.
The Writ Petition is allowed as above.
(HARUN-UL-RASHID, JUDGE)
sp/
W.P.(C)NO.8364/2008 5
HAURN-UL-RASHID, J.
W.P.(C)NO. 8364/2008
JUDGMENT
9TH JUNE, 2008