This petition challenged an order allowing restoration of a suit dismissed for default. The High Court held that the trial court's discretion was exercised legally and there were no grounds for interference under Article 227 of the Constitution. The petition was dismissed.
The Original Petition was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE K.T.SANKARAN
FRIDAY, THE 28TH JANUARY 2011 / 8TH MAGHA 1932
OP(C).No. 373 of 2011(O) -----------------------AGAINST THE ORDER DATED 13.12.2010 IN IA.709/2009 IN OS.84/2008 OF MUNSIFF-MAGISTRATE COURT, PAYYOLI
PETITIONER :
MEKKUNNANKANDI VELLIYOTT ABDULLA, S/O.SOOPI HAJI, RESIDING AT MURICHANDI, VILAYATTUR AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT.
BY ADV. SRI.T.P.KELU NAMBIAR, SENIOR ADVOCATE SRI.P.G.RAJAGOPALAN
SRI.M.GOPIKRISHNAN NAMBIAR
RESPONDENT(S):
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 28/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.T.SANKARAN, J.
O.P.(Civil) No.373 of 2011 O
Dated this the 28th day of January, 2011
JUDGMENT
The first defendant in O.S.No.84 of 2008 on the file of
the court of the Munsiff Magistrate of Payyoli challenges in this Original Petition the order dated 13th December 2010, in I.A.No.709 of 2009 by which the court below allowed the application for restoration of the suit under Rule 9 of Order 9 of the Code of Civil Procedure.
permanent prohibitory injunction. The plaintiff and the first defendant are brothers. The suit was listed for trial. On that day, the plaintiff filed an application for appointing a Commissioner. He also filed an application for removing the case from the special list. The case was adjourned to another date. On that day, the plaintiff and his counsel were absent. Therefore, the suit was dismissed for default.
O.P.(Civil) No.373 of 2011
2
The court below exercised the discretion for the purpose of restoring the suit. It cannot be said that the discretion exercised by the court is illegal or without jurisdiction. No grounds are made out for interference under Article 227 of the Constitution of India. Accordingly, the Original Petition is dismissed.
JUDGE
K.T.SANKARAN
csl
2 issues framed by the court
Whether the High Court can interfere under Article 227 of the Constitution of India when the trial court exercised its discretion to restore a suit dismissed for default.
Whether there are grounds to set aside the order allowing restoration of the suit under Order 9 Rule 9 CPC.
2 provisions across 2 enactments
Mekkunankandi Vellyyott Abulla
Mekkunankandi Vellyotty Ibraiy
Nettiottummal Santha
Nelliottummal Gopalkrishnan
Nelliottummal Kanchana
K.T. Sankaran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
