K T CHANDUKUTTY Vs. PARAMBATH SURENDRAN

JUDGEMENT

(1.) PETITIONERS are defendants in O.S.No.311 of 2006 of the Court of learned Principal Munsiff-I, Kozhikode. That is a suit for injunction filed by the respondents to restrain petitioners trespassing into the shop rooms. PETITIONERS filed written statement and counter claim. By Ext.P4, the suit was dismissed for default on 13.12.2007 and the counter claim was decreed. PETITIONERS filed Ext.P5, execution petition. In the execution proceeding also respondent remained absent. It is contended that the Amin appointed by the Court delivered the shop rooms on 20.08.2008 and they have let out the shop rooms to third parties who are now in possession and enjoyment of the said shop rooms. While so, respondent filed Exts.P7 to P9 on 08.08.2008 for restoration of the suit, setting aside the decree on the counter claim and to condone the delay of 205 days in filing the said applications. Respondent remained absent on those applications and thereon by Exts.P12 and P13 the said applications were dismissed. Those orders were challenged in C.M.A.Nos.29 and 30 of 2009 before the learned District Judge, Kozhikode. Learned District Judge by Ext.P14, common judgment allowed the appeal and remanded Exts.P7 to P9 to the trial court for fresh decision. Learned District Judge has observed that even though respondents were absent on Exts.P7 to P9, applications on the relevant day, the trial court was required to decide the applications on merit based on the affidavits of the parties. It is contended by learned counsel that the said observation of the learned District Judge is not correct and that when respondents and counsel were absent the appropriate course open to the learned Munsiff was only to dismiss Exts.P7 to P9, applications for default. It is also submitted that respondents ceased to have any interest in the subject matter and that certain persons behind them are causing obstruction to the possession of the shop rooms by the tenants of petitioners.

(2.) I need not go into the question whether learned District Judge was correct in making the impugned observations. The ultimate order is one of remand enabling respondents to prosecute Exts.P7 to P9, applications. The maintainability of the C.M appeals cannot be disputed even though Exts.P7 to P9, applications were dismissed for default in view of the decision in Lakshmikutty Panickathi Vs. Bhargavi Panickathi (1987(2) KLT 562). Since learned District Judge has given an opportunity to the respondents to prosecute Exts.P7 to P9, applications I do not find reason to interfere with the ultimate order.