Under challenge is Ext.P6 order whereby the court below dismissed an application under Order IX Rule 9 with exemplary costs of Rs.5,000/-.
2. The facts absolutely necessary for the disposal of this appeal are as follows:
The petitioner is the plaintiff in O.S.201 of 2007 on the file of Munsiff's Court, Devikulam. The true copy of the plaint is produced as Ext.P1. The suit was one for permanent prohibitory injunction restraining the defendant and his men from trespassing into the plaint schedule property, committing waste and for other ancillary reliefs. A written statement was filed by the defendant. When the Munnar Special Tribunal came into existence, the suit was transferred to that Tribunal under Section 3 of the Munnar Special Tribunal Act, 2010. The case was renumbered as MTOP No. 12 of 2012. It was pointed out that on 19.12.2012 the case was posted for filing proof affidavit. On that day, the petitioner filed an application for appointment of a survey commission. The petitioner asserts that he had prepared the proof affidavit and the same was served to the first defendant. However, there was an inadvertent omission to serve copy to the second defendant, State of Kerala. On that technical ground, it is alleged, the suit was dismissed. The petitioner filed an application under Order IX Rule 9 of C.P.C. to restore the suit to file. A detailed objection was filed by the first defendant. The petitioner claims that even though he had explained the reason for the delay, the court below had ignored the same and dismissed the application with exemplary costs of Rs.5,000/-.
3. Learned counsel appearing for the petitioner points out that in all fairness, the Tribunal ought to have decided the matter on merits. Learned counsel placed reliance on two unreported decisions of this Court, W.P.(C) 26914 of 2014 and W.P.(C) 26955 of 2014 and contended that in similar circumstances, in one case this Court had allowed the petition on payment of costs of Rs.1,000/- each of the petitioners therein and the other without any such conditions. Learned counsel pointed out that the petitioner had shown sufficient and cogent reasons for his default. There was no justification for the court below in declining to accept the reason and dismissing the suit. Learned counsel therefore submits that the impugned order is unjustified in law.
4. After having heard counsel for the petitioner and having gone through the order, this Court is unable to find any error in the order passed by the court below. The court below has noticed that on going through the order sheet it was seen the petitioner was repeatedly taking adjournments under one pretext or another and once the case was dismissed for non-prosecution by the original court and on two occasions by the Tribunal and it was subsequently restored to file on payment of costs. Even after all these exercises, on the date on which the suit was posted for trial, the petitioner came forward with an application for issuance of a survey commission knowing fully well that he has to take pre-trial steps long before. That application was dismissed on the same day. It was also noticed by the court below that copy of the proof affidavit has not been served on the second respondent.
5. On noticing the conduct of the petitioner, the court below formed the opinion that it is evident that the attempt of the petitioner is to drag on the proceedings under one pretext or another. Under such circumstances, the court below dismissed the application with exemplary costs.
6. It is no doubt true that the petitioner had enjoyed sympathy of court on two occasions and still he was not careful in prosecuting the matter. As the court below has observed that a number of adjournments have been granted at the instance of the petitioner and on two occasions it was dismissed for default and on those two occasions the court has been extremely considerate and restored the suit to file, the same practice continued even thereafter.
7. The suit was listed for trial long before the date of trial. In fact prior to listing cases for a month, a draft list is published so that objections to inclusion in list can be taken.
8. On the date fixed for trial, the petitioner moved an application for issuance of survey commission when he has ample opportunities to do so before the date on which the suit was listed for trial. However, he chose the date of trial to move an application for appointing a survey commission. Further, the copy of the proof affidavit has not been served on the second respondent also. It is quite evident that the attempt of the petitioner was to drag on the proceedings. This is a ploy deliberately adopted by the petitioner to get the suit out of list and get the matter postponed further. As rightly noticed by the court below the petitioner had ample opportunities to prefer the commission application.
9. The decisions cited by the learned counsel for the petitioner are cases where there was no such tactics adopted by the party as has been done in the present case. The principle laid down in those decisions cannot be applied in the case on hand since in this case the attempt of the petitioner was to postpone the trial of the case under one pretext or another.
10. However, it is always desirable that the court disposes of the case on merits and that does not mean that the court should always grant the adjournment sought for on unmerited grounds. Whatever that be, considering the totality of the facts and circumstances, it is felt that there is nothing wrong in allowing the petition on exemplary costs being paid to the respondents.
In the result, this petition is allowed and impugned order shall stand set aside and the suit shall stand restored to file provided the petitioner pays a sum of Rs.30,000/- as costs to the first respondent within three weeks from today. If the suit is restored to file, the same shall be disposed of within nine months of restoration.
P. BHAVADASAN, JUDGE sb.