Kerala High Court
Parameswaran vs Dharmarajan on 11 January, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
THURSDAY, THE 11TH DAY OF JANUARY 2024/21ST POUSHA, 1945
OP(C) NO.1554 OF 2023
AGAINST THE ORDER DATED 07.07.2023 IN I.A.NO.1038/2022 IN
OS 59/2014 OF MUNSIFF MAGISTRATE COURT, MANNARKAD
PETITIONER/PLAINTIFF:
PARAMESWARAN, AGED 52 YEARS,
S/O. KARUPPANNA KOUNDER, PUTHUKKAD HOUSE,
ADIYAKANADIYOOR, KALLAMALA VILLAGE,
KALLAMALA DESOM, MANNARKKAD TALUK,
NOW RESIDING AT 41 ARAVINDHA NAGAR,
K.N.G. PUDUR, CROSS THADAKAM ROAD,
COIMBATORE, TAMIL NADU, PIN - 641108.
BY ADVS.
VIMAL VIJAY
K.JAYESH MOHANKUMAR
PUSHPARAJAN KODOTH
VANDANA MENON
RESPONDENTS/DEFENDANTS:
1 DHARMARAJAN, AGED ABOUT 48 YEARS,
S/O.VELLINGIRI, THAVALAM P.O.,
RESIDING AT THAVALAM, AGALI VILLAGE,
MANNARKKAD TALUK, PALAKKAD, PIN - 678581.
2 RAJAMMA, AGED 68 YEARS, W/O.VELLINGIRI,
RESIDING AT THAVALAM, AGALI VILLAGE,
MANNARKKAD TALUK, PALAKKAD, PIN - 678581.
BY ADVS.
NIREESH MATHEW
GAJENDRA SINGH RAJPUROHIT(K/000852/2019)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
11.01.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(C) No.1554 of 2023
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JUDGMENT
Dated, this the 11th January, 2024 The petitioner herein is the plaintiff in O.S. No.59/2014 pending before the Munsiff Court, Mannarkad. He is aggrieved by Ext.P5 order, which dismissed an application under Order IX, Rule 4 of the Code of Civil Procedure, seeking to set aside the dismissal of the suit for default.
2. Heard the learned counsel for the petitioner and respondents.
3. This Court notice that the suit was originally listed for trial on 01.10.2022, whereupon the petitioner/plaintiff filed I.A. No.877/2022 to remove the suit from the list. The suit was adjourned to 13.10.2022, on which date, there was no sitting. When the matter was OP(C) No.1554 of 2023
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again considered on 27.10.2022, neither the plaintiff nor the defendants were present, with the result, the suit was dismissed for default. Within the prescribed time, the petitioner/ plaintiff filed I.A.No.1038/2022 seeking the suit to be restored back on files. The same is seen dismissed by Ext.P5 order, for reason of not having produced any medical record in support of the petitioner's assertion that he was laid up due to fever.
4. This Court is of the opinion that Ext.P5 order cannot be sustained. It is relevant to note that the petitioner had filed necessary application under Order IX, Rule 4, within the stipulated time limit. There is no history of the suit having been dismissed earlier for non- prosecution. Only for the reason that a supporting document evidencing the disease of the petitioner is not produced, the application OP(C) No.1554 of 2023
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need not have been dismissed. Ext.P5 is therefore set aside and Ext.P3 application to set aside the ex-parte order is allowed. The learned Munsiff will continue with the suit in accordance with law. This being a suit of the year 2014, there will direction to the learned Munsiff to try and dispose of the same, as expeditiously as possible, at any rate, within a period of six months from the date of receipt of a copy of this judgment.
Sd/-
C.JAYACHANDRAN, JUDGE ww OP(C) No.1554 of 2023
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APPENDIX OF OP(C) 1554/2023 PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S.NO.
59/2014 ON THE FILE OF THE MUNSIFF COURT, MANNARKKAD DATED 03.04.2014.
EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENTS IN OS 59/2014 DATED 27.09.2014.
EXHIBIT P3 TRUE COPY OF THE I.A. 1038/2022 IN O.S. 59/2014 DATED 22.11.0222 ON THE FILE OF THE MUNSIFF COURT, MANNARKKAD.
EXHIBIT P4 TRUE COPY OF THE COUNTER I.A. 1038/2022 IN O.S. 59/2014 DATED 28.03.2023 ON THE FILE OF THE MUNSIFF COURT, MANNARKKAD.
EXHIBIT P5 TRUE COPY OF THE ORDER IN I.A. NO.
1038/2022 IN O.S.59/2014 DATED 07.07.2023 ON THE FILE OF THE MUNSIFF- MAGISTRATE COURT, MANNARKKAD.