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2012 Supreme(Online)(KER) 7382
HIGH COURT OF KERALA
K.HEMA, P.S.GOPINATHAN, JJ
MAYYERI MOHAMMED KUTTY HAJI – Appellant
Versus
NAZAR – Respondent
CRP 760 2008
SRI.NIRMAL.S, SRI.K.M.FIROZ
A party's justified absence due to medical reasons should not prevent the restoration of a suit under Order 9 Rule 9 of the Civil Procedure Code.
Headnote:
Revision - Suit Restoration - Order 9 Rule 9 - Summary: The court interpreted Order 9 Rule 9 of the Code of Civil Procedure regarding the restoration of a suit dismissed for default, emphasizing that absence due to legitimate medical reasons should not hinder a party's ability to seek restoration.
Fact of the Case:
The plaintiff's suit was dismissed for default due to his non-appearance caused by a pelvic fracture. He subsequently filed an application to restore the suit, which the court initially dismissed, prompting a revision petition.
Finding of the Court:
The court found that the plaintiff's medical condition justified his absence, and previous conduct of seeking adjournments on medical grounds should not be interpreted as lack of interest in prosecuting the suit.
Issues: Whether the plaintiff had sufficient cause for his absence in court and if he could have his suit restored despite previous dismissals.
Ratio Decidendi: The court established that medical incapacity provides a valid reason for non-appearance, and while there were some delays on the plaintiff's part, they could be remedied with costs rather than outright dismissal.
Final Decision: The revision petition is allowed, and the suit is restored on payment of costs.
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 16th 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 le
