O.P.(C) 3776/2011 has been filed by the plaintiff in O.S.1790/2006 of the Additional Munsiff's Court, Thiruvananthapuram challenging order dated 8.8.20 1 in I.A.No.5801/2011. O.P.(C)3781/2011 is filed by the very same petitioner in O.P.(C)3776/20 1, who is the defendant in O.S.23/2007 of the said court challenging order dated 8.8.2011 in I.A.No.5781/2011.
2. The petitioner as plaintiff initially filed O.S.1790/2006 before the Munsiff's Court, Thiruvananthapuram seeking a decree of perpetual injunction thereby restraining the defendants from trespassing into the plaint schedule property and from committing waste thereon, and for putting up the western boundary of the plaint schedule property. It seems that later the plaint was amended by modifying the western boundary as the eastern boundary. The defendants in the said suit as plaintiffs, filed O.S.23/07 before the said court seeking a decree of perpetual injunction restraining the petitioner herein from converting 'D' schedule pathway as part of the property of the petitioner and also from causing obstructions to the entry of the plaintiffs into the plaint 'D' schedule pathway, and also for a mandatory injunction for demolishing the new basement constructed by the petitioner on the eastern portion of plaint 'D' schedule pathway. The said properties are neighbouring properties.
3. Both the suits were jointly tried. When the suits came up in the list, the petitioner herein could not appear before the court below. Even though an application for adjournment was filed, the same was not entertained and O.S.1790/2006 was dismissed for default.
4. In O.S.23/2007 PWs.1 to 3 were examined on the side of the plaintiff and the same was adjourned for further evidence. The petitioner herein filed Ext.P2, I.A.3052/20 1, under Order IX Rule 9 of the Code of Civil Procedure 1908 (for short 'the Code') in O.S.1790/2006 for getting the suit restored. Through Ext.P3 order dated 11.4.20 1 the court below allowed the said IA on cost of ₹2,000/- to be paid within five days. In the mean time, there was a change of vakkalath of the counsel for the petitioner. Without noticing Ext.P3 order, Ext.P4, I.A.3799/2011 was once again filed under Order IX Rule 9 and Section 151 of the Code for getting the suit restored. It seems that the court below allowed the said IA on payment of costs of ₹1,500/- on 30.06.2011, without noticing the fact that earlier the very same request was granted. The said cost was paid. The petitioner filed Ext.P5, I.A.5801/20 1, seeking a review of the order in I.A.3052/20 1 and for the enlargement of time for payment of costs. Through Ext.P6 order dated 8.8.20 1, the court below has chosen to dismiss IA 5801/20 1. It is aggrieved by the same, OP 3776/20 1 has been filed.
5. In O.S.23/2007, Ext.P2 application was filed by the petitioner herein for reopening the evidence thereby enabling the petitioner to cross examine PWs.1 to 3. The said IA also was allowed through Ext.P3 order dated 11.4.20 1 on payment of costs of Rs.2,000/-. As in O.S.1790/2006, there was a change of vakkalath for the petitioner in O.S.23/2007 also. Without noticing Ext.P3 order, Ext.P4, I.A.3600/20 1 was filed under Order IX Rule 13 CPC and under Section 151 CPC, as if it was one for getting the 'ex-parte order' set aside. The said IA was dismissed. Again, the petitioner filed Ext.P6 application, I.A.5781/20 1 for review of the order in I.A.3053 of 20 1 for enlargement of time originally fixed for the payment of costs. The said IA was dismissed through order dated 8.8.2011, on which the present OP(C) 3781/2011 has been filed.
6. Heard the learned counsel for the petitioner Sri.
V.R. Gopu and learned counsel for the respondents Sri.Blaze K. Jose.
7. It has clearly come out that without noticing Ext.P3 order in I.A. 3052/2007 in O.S.1790/2006, the petitioner had filed IA 3799/2011 under Order IX Rule 9 of the Code, for getting the suit restored. It seems that the court below has allowed I.A.3799/20 1 on payment of costs of Rs.1,500/-. The said cost was paid on 30.06.2011. The said fact has been affirmed by the petitioner in the affidavit filed in support of I.A. 5801/2011. Over and above it, the said facts seems to be correct as the court below has also endorsed the said fact in Ext.P6 order. The court below has stated “thereafter another application for the same purpose was filed by the present counsel. That was also allowed on costs and cost was paid.” Whether it is a right order or wrong order, it is evident that I.A. 3799/20 1 was allowed by the court below, thereby restoring the suit on payment of costs. The said cost was paid on 30.06.2011. Matters being so, the said order has become final thereby O.S.1790/2006 stands restored. In fact, the suit was restored as on 30.06.20 1 when the cost was paid. Again it seems that, unnecessarily I.A.5801/20 1 was filed for review of the order on I.A. 3052/20 1 and for enlargement of time for payment of cost. The court below has rightly dismissed the said IA through Ext.P6 order. It is evident that through the order in I.A.3799/20 1, O.S.1790/2006 stands restored. Matters being so, the court below shall proceed with O.S.1790/2006.
8. Regarding O.S.23/2007, it has to be noted that when O.S.1790/2006 with which O.S.23/2007 was jointly tried stands restored, the ex-parte order passed as against the petitioner herein has to be set aside under Order IX Rule 7 of the Code. When O.S.1790/2006 stands restored, the court below has committed a grave error in not setting aside the ex-parte order in O.S.No.23/2007. In such a context, the court below ought to have allowed Ext.P5 application filed under Section 148 read with Section 151 of the Code for enlargement of time for payment of costs. I.A.5781/2011 in O.S.No.23/2007 is only to be allowed by granting two more weeks time to the petitioner herein to pay the cost as ordered. The petitioner shall pay or deposit an amount of Rs.2,000/- as cost within 15 days from today, in which case, the ex-parte order as against the petitioner shall stand set aside. In the event of not paying the costs within the time stipulated, O.P.(C) 3781/20 1 will stand dismissed.
In the result, O.P.(C)3776/20 1 is disposed of by finding that O.S.1790/2006 stands restored. The court below shall proceed with the suit. O.P.(C)3781/20 1 stands allowed thereby allowing I.A.No.5781/20 1. 15 days more time is granted to the petitioner to pay the cost of Rs.2,000/-, failing which the consequences as noted above will follow. On the payment of costs, the ex-parte order in O.S.23/2007 will stand set aside; in which case, the court below shall proceed with the suit.
Sd/-B.KEMAL PASHA, JUDGE ul/- // true copy // P.S. to Judge