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YACOB, AGED 70 YEARS, S/O. LATE PAILY versus VARGHESE, S/O. LATE PAILY

High Court of Kerala

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YACOB, AGED 70 YEARS, S/O. LATE PAILY v. VARGHESE, S/O. LATE PAILY - WP(C) No. 3893 of 2007(L) [2007] RD-KL 3813 (20 February 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 3893 of 2007(L)

1. YACOB, AGED 70 YEARS, S/O. LATE PAILY,
... Petitioner

Vs

1. VARGHESE, S/O. LATE PAILY,
... Respondent

For Petitioner :SRI.GEORGE ABRAHAM

For Respondent : No Appearance

The Hon'ble MR. Justice K.P.BALACHANDRAN

Dated :20/02/2007

O R D E R

K.P.BALACHANDRAN, J.


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W.P.(C)NO.3893 OF 2007
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Dated this the 20th day of February 2007



JUDGMENT

A petition to restore the suit setting aside the dismissal of the suit for default filed by the respondent/plaintiff was dismissed by the Trial Court but the said order was reversed and the petition was allowed by the appellate court ordering cost of Rs.2,000/- to be deposited on or before 31.1.2007. Counsel for the petitioner is not aware as to whether the cost has been paid or deposited by the respondent. It goes without saying that if the cost is either paid or deposited, the order of the appellate court setting aside the dismissal for default and remitting the matter to the court below for disposal afresh will come into operation.

2. Much is argued on merits of the case by the counsel for the petitioner contending that there was no bonafides in the restoration application and that the suit happened to be dismissed when it stood posted for trial in the special list for the reason that the respondent was not present and all other W.P.(C)NO.3893 OF 2007 2 allegations to the contrary made in the restoration application are false. However, it is considering all those aspects that the appellate court allowed the petition only on payment of Rs.2,000/- as cost in its discretion.

3. I find no reason why the said order is to be interfered with by this court and the dismissal of the suit for default in favour of the petitioner is allowed to stand. This petition therefore is devoid of merit and deserves to be dismissed. Counsel for the petitioner however submits that the parties are brothers and he would like the matter to be settled between the parties. If the parties so desire they can attempt such settlement at Adalath and for referring that matter to the Adalath they can make request before the trial court. This writ petition is disposed of with the above directions.

K.P.BALACHANDRAN, JUDGE

jes


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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