MANOHARAN Vs. EZHOME GRAMA PANCHAYAT

JUDGEMENT

(1.) This C.R.P. is filed by the plaintiff, petitioner in I.A. 2090/2000 in O. S. No. 57/98 of the Munsiff's Court, Taliparamba assailing the order dated 18.8.2000.

(2.) The petitioner has filed the suit against the respondents for mandatory injunction in a representative capacity under O. I, R.8 of the C.P.C. When the suit was posted for trial on 31.1.2000 the suit was dismissed for default as there was no representation on behalf of the plaintiff. I.A. No. 651/2000 filed by the plaintiff for restoration of the suit under O.9, R.9 of the C.P.C. was also dismissed for default. Hence the plaintiff filed the above I.A. to restore I.A. No. 651/2000 which was dismissed for default. The lower court dismissed the petition as per the impugned order stating that the provision for appeal can be invoked and there is no provision to restore the petition for restoration.

(3.) The counsel for the petitioner vehemently submitted that the above suit is filed against the respondents for restoration of Avipalam public channel which drains rain water from the adjoining properties to the Pazhayangadi river, a portion of which has been trespassed upon, filled up and unauthorised construction is made by the 2nd respondent, in a representative capacity. He has also submitted that even though appeal is provided against the order of dismissal of an application to restore the suit under O.9, R.9 of C.P.C., the court has got ample jurisdiction to set aside the order of dismissal of the petition under S.151 of the CPC, even if no petition for restoration lies under O.9 R.9 of the CPC. According to him, in case the dismissal order is not set aside and the petitioner is not given an opportunity to urge his contentions, there will be grave failure of justice and trespass upon the public property and destruction of the public thodu will be perpetrated. Therefore, according to him, in the interests of justice the lower court should have taken a reasonable and pragmatic view of the matter instead of taking a very strict and highly technical stand and dismissing the above petition.