IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 21687 of 2009(E)
1. VAZHAVALAPPIL KRISHNAN, S/O. KANNAN
... Petitioner
Vs
1. THE SPECIAL TAHSILDAR (L.A.),
... Respondent
For Petitioner :SMT.P.K.PRIYA
For Respondent : No Appearance
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :18/09/2009
O R D E R
THOTTATHIL B.RADHAKRISHNAN, J.
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W.P(C).No.21687 OF 2009
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Dated this the 18th day of September, 2009
JUDGMENT
1.The petitioner is the first claimant in LAR.No.18/05, which was
included in the special list before the court below on
14.12.2006 for trial. He was laid up due to CVA-Cardio-
Vascular accident (stroke) and accordingly, he could not
appear. The matter was adjourned to a date shortly thereafter.
Ultimately, the LAR ended. Later, the petitioner filed I.A.49/07
seeking restoration of the LAR, invoking Order 9 Rule 9 and
Section 151 C.P.C. After considering the evidence of the
petitioner, that I.A. has been rejected by the court below.
Hence, this writ petition under Article 226 of the Constitution
of India.
2.I have perused the order that was passed by the court below
on 15.12.2006. I did so because in the orders Ext.P1, the court
below says that the court never dismissed the reference on
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that day but that the reference was answered against the claim
on account of failure in adducing additional evidence. But, a
perusal of the order issued on 15.12.2006 shows that it is
nothing but a decision on default. The court records that in
spite of adjournments, the claimant did not take steps to be
examined, even through a Commissioner and ultimately states
that for lack of additional evidence, the court answers the
reference against the claimant. There is nothing in that order
to show that the court below had applied its mind to the
contents of the award of the Collector; the materials taken
stock of by the Collector and the reason why the Collector
confined the land value to a particular amount or confined the
total compensation to the amount that was actually granted.
Such consideration would have made the order dated
15.12.2006 one that would have amounted to an award on
merits and not one on default. But the fact remains that it is
one on default. With that, it is necessary to overrule the
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findings in Ext.P1 that the order dated 15.12.2006 was not one
where the reference was closed on default. I do so.
3.With the aforesaid, the fact that the petitioner was seriously
sick is not disputed. The evidence tendered by PW1, though
not in the technical sense as understood in the law of
evidence, corroborates the history of the litigation as is
discernible even from Ext.P1 order. It was because the
petitioner was sick that he did not tender evidence and his
wife and he jointly applied for restoration. Under such
circumstances, in terms of law, the petitioner and his wife had
demonstrated that they had sufficient cause of being absent
and tender evidence when the LAR was listed for trial and also
on 15.12.2006, when the matter was decided on default. I am
satisfied that Ext.P1 works injustice and deserves to be set
aside in exercise of Article 227 of the Constitution of India.
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4.It appears that even after Ext.P1, there is delay in filing this
writ petition. Ext.P1 order is issued on 30.5.2007 while this
writ petition is filed on 30.7.2009, i.e., after more than two
years. Therefore, learned Government Pleader is right in
saying that the delay of that two years is not directly
attributable to the State while the said delay is not explained
to the satisfaction. That is expected in judicial proceedings.
He, therefore, rightly points out that there should be some
slashing of the interest component that would accrue during
the said period of two years and two months.
5.Taking into consideration all relevant facts into consideration,
Ext.P1 is set aside and LAR.No.18/05 is remitted as restored to
the files of the court of subordinate Judge, Hosdurg with a
further direction that on conclusion of trial, if the claimants
are found entitled to any amount by way of enhancement, the
interest on such components would not run for a period of one
and half years. It is also directed that this judgment will form
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part of the LAA and LAR files. The Office will transmit a copy
of this judgment to the court below. In the event of an award
being passed, this order will be treated as merged in that
award and it will form part of that award as regards the
interest component. This writ petition is so ordered. No costs.
Sd/-
THOTTATHIL B.RADHAKRISHNAN,
Judge.
kkb.29/9.