Mayyeri Mohammedkutty Haji v. Nazar

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA & THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN TUESDAY, THE 16TH DAY OF OCTOBER 2012/24TH ASWINA 1934 CRP.No. 760 of 2008 ----------------------IA.335/08 IN OS.3/2007 of WAKF TRIBUNAL, KOZHIKODE ............ REVISION PETITIONER/PETITIONER/PLAINTIFF: MAYYERI MOHAMMEDKUTTY HAJI, S/O. SAIDALIKUTTY, MUTHAVALLY, MAYYERI NAMASKARA PALLI, PARAVANNUR DESOM, KALPAKANCHERY AMSOM, TIRUR. BY ADV. SRI.NIRMAL.S. RESPONDENT/RESPONDENT/DEFENDANT: NAZAR, S/O. MOHAMMED, CHANGANSSERY, PARAVANNUR DESOM, KALPAKANCHERY AMSOM, TIRUR. BY ADV. SRI.K.M.FIROZ THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **APPENDIX IN CRP 760/08** ANNEXURE-A1 TRUE COPY OF THE MEDICAL CERTIFICATE DT. 3.12.2007 ISSUED BY DR.SHIBLY ABDUL BASITH MS ORTHO, PERINTHALMANNA ANNEXURE-A2 TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED BY DEPT. OF ORTHOPAEDICS, MES MEDICAL COLLEGE, PERINTHALMANNA ANNEXURE-A3 TRUE COPY OF THE AFFIDAVIT FILED BY THE REVISION PETITION IN IA 335/08 DT. 10.3.08 /TRUE COPY/ K.Hema & P.S.Gopinathan, JJ. ---------------------------------- C.R.P.No.760 of 2008 ---------------------------------Dated this the 16[th] day of October, 2012 ## **ORDER** Hema, J. This revision petition is filed challenging the order of dismissal passed in an application for restoration of the suit under Order 9 Rule 9 of Code of Civil Procedure. 2. The revision petitioner is the plaintiff in the suit. When the suit came up in the list on 04.03.2008, petitioner was not present and though the court directed him to take steps to examine him on commission, since he was seeking adjournments on previous occasions, no steps were taken. Therefore, the suit was dismissed for default. On the same day, petitioner filed I.A. No.279/2008 with a request to remove the suit from the list. But that was also dismissed. 3. According to the revision petitioner, he could not be present in court on earlier occasions also because he was laid up after being toppled over by a bull and sustaining fracture to the pelvic bone. The incident happened in April 2007 but he was advised to take rest for three months. A medical certificate was CRP 760/08 2 also produced by the petitioner. The petitioner filed a petition through his counsel on 04.03.2008 as I.A.No.279/2008 stating that he had to produce certain documents before the Village Office for which he had to get certain documents from the court and he had not received the documents though he applied for the same. It is also contended that only if certified copy of the document is procured from the court, he could produce the same before the Village Office and get documents from the said office. Therefore, he filed I.A.No.279/2008 to remove the suit from the list. 4. After the dismissal of the suit, revision petitioner filed an application to restore the suit stating various reasons. Objection was filed by the respondent contending that the averments in the petition and affidavit are not correct and that petitioner was not laid up, etc. The court, after considering the rival contentions, found that revision petitioner's conduct would reveal that he was not interested in prosecuting the matter. Every time when the suit was included in the list, he came up with a petition for adjournment and therefore, the petition was dismissed. Hence, this revision is filed. CRP 760/08 3 5. Heard both sides. Learned counsel for the revision petitioner submitted that petitioner could not be present in court only because he was laid up and medically advised to take rest due to pelvic fracture sustained in an accident which occurred in April 2007. The suit was listed for the first time on 07.12.2007 and he had filed an application for adjournment along with a medical certificate. The said application was allowed, but the case was posted to a very near date on the next month. 6. Though, as per the medical certificate, petitioner was not in a position to move at least for three months, the case was posted to the very next succeeding months, in January, February and March. It was not due to his fault that he could not appear in court as revealed from the medical certificate, it is submitted. Therefore, non-appearance of the revision petitioner on different dates to which the case was posted cannot be taken as a ground to reject his prayer to remove the case from the list as per a petition filed on 04.03.2008, it is submitted. 7. Learned counsel for the respondent argued that it is false to say that petitioner was laid up. It is also submitted that petitioner, by his conduct, has satisfied the court below that he CRP 760/08 4 was not interested in prosecuting the case. On hearing both sides, the following facts are revealed: 8. The petitioner sought for adjournment when the case was included in the list on 07.12.2007 by producing a medical certificate, as per which he had sustained pelvic fracture in an incident which took place in April 2007 and he was advised to take rest. It is also clear from the impugned order itself that a petition was filed seeking adjournment on medical ground and it was allowed. Thus, it is evidence that the court was satisfied of the cause shown by petitioner to get an adjournment on 07.12.2007. It is also clear that the case was posted to the very next two months, during which period, a person with fracture to pelvic bones would not be in a position to move about. 9. Therefore, the fact that petitioner did not appear on previous occasions to which the case was posted cannot be taken as an adverse conduct for dismissing the petition for removal of the case from list, which was filed on 04.03.2008. The court below itself had allowed the prayer and this must be for the reason that the contentions are true. The court below did not consider whether the reason shown for the absence on CRP 760/08 5 04.03.2008 was acceptable or not. The question is whether on 04.03.2008, the date on which the case was included in the list, petitioner had sufficient cause for not appearing in court. 10. It appears from the impugned order that court has given opportunity to the petitioner to examine himself on commission, but no steps were taken by him. The explanation given by the petitioner is that he filed I.A.No.279/2008 to remove the case from list, since he had to obtain certified copy of certain documents from the court to produce the same before the Village Office. That is why he could not get ready for examination. No reason is also shown as to why petitioner did not take steps sufficiently early to get the documents referred to in I.A.No.279/2008. 11. In the above circumstances, we find that there are some laches on the part of the petitioner in not getting ready on 04.03.2008 for his examination and not procuring relevant documents on time. But, we find that laches can be compensated by ordering cost to the respondent and petitioner can be given an opportunity to contest the matter on merit. At any rate, absence of petitioner on the previous two postings cannot be taken as a CRP 760/08 6 ground to reject his application for restoration. 12. In the result, the following order is passed: - i. Petitioner shall pay ` 5,000/- as cost to the respondent within one month from today. - ii. If the cost is paid within the time stipulated, court below shall take the suit on file and dispose of the same in accordance with law. - iii. I.A.No.335/2008 in O.S.No.3/2007 is allowed on condition. - iv. Parties shall appear before the court below on **16.11.2012** . - v. The court shall dispose of the suit within three months from 16.11.2012. This revision is disposed of accordingly. (K.Hema, Judge) (P.S.Gopinathan, Judge) tkv