Kerala High Court
Babu Unnikrishnan vs Palanal @ Pazhaniyammal on 9 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
TUESDAY, THE 09TH DAY OF FEBRUARY 2021 / 20TH MAGHA,1942
OP(C).No.1856 OF 2020
CMA 4/2017 OF SUB COURT, OTTAPPALAM
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PETITIONER:
BABU UNNIKRISHNAN
AGED 52 YEARS
S/O. UNNIKRISHNAN, RESIDING AT VEDAPETTI, SREERAM
GARDENS, PHASE NO.2B/39,KURUMBA PALAYAM, COIMBATORE
TALUK AND DISTRICT,TAMIL NADU-641 007
BY ADV. SRI.R.SREEHARI
RESPONDENT/S:
PALANAL @ PAZHANIYAMMAL
AGED 69 YEARS
W/O. SUBRAMANIAN, VAYALUR, SHOLAYUR VILLAGE AND
POST, MANNARKKAD TALUK, PALAKKAD DISTRICT,PIN-678
581
R1 BY ADV. SRI.K.T.THOMAS
R1 BY ADV. SRI.MATHEW B. KURIAN
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 09.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SATHISH NINAN, J.
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O. P. (C) No.1856 of 2020
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Dated this the 9th day of February, 2021
JUDGMENT
The suit for money was dismissed for default.
The application seeking restoration of the suit was
dismissed. The dismissal was affirmed in appeal.
Challenging the said order, this original petition
is filed.
2. Heard learned counsel on either sides.
3. The suit had been pending since the year
2013 and was dismissed on 05.12.2015, the date it
was posted for trial, consequent to the non-
appearance of the petitioner-plaintiff. There was a
delay of six months in seeking for restoration of
the suit. The courts below noticed the fact that
though the petitioner sought to explain his absence
based on his medical condition, the medical
certificate produced by him related only to less
than one week. Accordingly the courts below
declined to have the suit restored.
O. P. (C) No.1856 of 2020
4. That the petitioner is residing in Tamilnadu
is not in dispute. That he suffered from some
illness on the date on which the suit was listed
for trial, is substantiated by the medical
certificate. The petitioner-plaintiff would not
stand to gain by causing any delay in seeking for
restoration of the suit filed by him. He has paid a
court fee of `23,400/-. It is only just that an
opportunity be granted to the plaintiff to have the
suit tried and disposed of on its merits. The
inconvenience caused to the respondent-defendant
can be compensated by way of costs.
In the result, the original petition is
allowed. Orders impugned will stand set aside and
the OS 98/2013 restored back to files of the
Munsiff-Magistrate's Court, Mannarkkad on condition
that the petitioners pay an amount of `15,000/- as
costs to the counsel appearing for the respondent-
plaintiff before this Court within a period of two
weeks from today. On restoration, the trial court
shall make every endeavour to have the suit tried
O. P. (C) No.1856 of 2020
and disposed of within a period of three months
thereafter. In the event of non-payment of the
costs ordered, the suit will stand dismissed.
Sd/-
SATHISH NINAN
JUDGE
kns/-
//True Copy//
P.S. to Judge
OP(C).No.1856 OF 2020
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 PHOTOCOPY OF PLAINT IN OS NO.98/2013 OF THE
MUNSIFF MAGISTRATE COURT, MANNARKKAD
EXHIBIT P2 PHOTOCOPY OF WRITTEN STATEMENT FILED IN OS
NO.98/2013 OF THE MUNSIFF MAGISTRATE COURT,
MANNARKKAD
EXHIBIT P3 CERTIFIED COPY OF THE AFFIDAVIT AND
APPLICATION IA NO.1233/2016 IN OS
NO.98/2013 OF THE MUNSIFF MAGISTRATE COURT,
MANNARKKAD
EXHIBIT P4 CERTIFIED COPY OF AFFIDAVIT AND APPLICATION
INA NO.1232/2016 IN OS NO.98/2013 OF THE
MUNSIFF MAGISTRATE COURT, MANNARKKAD
EXHIBIT P5 PHOTOCOPY OF MEDICAL CERTIFICATE FILED
ALONG WITH IA 1233/2016
EXHIBIT P6 PHOTOCOPY OF ORDER IN IA NO.1232/2016 IN OS
NO.98/2013 OF THE MUNSIFF MAGISTRATE COURT,
MANNARKKAD DATED 31.10.2016
EXHIBIT P7 PHOTOCOPY OF ORDER IN IA 1233/2016 IN OS
NO.98/2013 OF THE MUNSIFF MAGISTRATE COURT,
MANNARKKAD DT 31.10.2016
EXHIBIT P8 PHOTOCOPY OF JUDGMENT IN CMA NO.04/2017 OF
SUB COURT, OTTAPALAM DATED 11TH
FEBRUARY,2020
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