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2013 DIGILAW 691 (KER)

Kannan v. State of Kerala

2013-08-07

P.N.RAVINDRAN

body2013
JUDGMENT : 1. The petitioner is the plaintiff in O.S.No.308 of 2002 on the file of the Court of the Munsiff of Payyannur. The respondents are the defendants therein. The suit instituted by the petitioner for a permanent prohibitory injunction restraining the defendants and their officials from trespassing into the plaint schedule property or from committing acts of waste therein or from interferring with his peaceful possession and enjoyment thereof was dismissed after trial by judgment delivered on 27.3.2004. The plaint schedule property is a parcel of land 0.9890 hectares in extent, situate in re-survey Nos.202/5, 202/6 and 202/7 of Peringome Village, Taliparamba Taluk, Kannur District. The plaintiff contended that he is in possession of the plaint schedule property, that he has also obtained a certificate of purchase from Land Tribunal, Payyannur, that on 10.11.2002 the officials of the defendants gathered near the plaint schedule proeprty and tried to trespass upon it and to cut and remove the cashew trees standing therein and to commit acts of waste. 2. Agrreived by the decree dismissing the suit, the petitioner filed A.S.No.70 of 2004 in the Court of the Subordiante Judge of Payyannur. While the appeal was pending, the petitioner filed a memo to the effect that he is not desirous of prosecuting the appeal any further. The appeal was accordingly dismissed as not pressed by Ext.P7 judgment delivered on 30.9.2010. Within one month thereafter, to be exact on 28.10.2010, the petitioner filed I.A.No.1750 of 2010 (Ext.P8) praying that the appeal may be restored to file. The application was styled as one filed under order IX Rule 9 of the Code of Civil Procedure. The petitioner had in the affidavit filed in support of the application averred that it was on account of the promise held out by the Village Officer of Peringome Village that he will receive tax from the petitioner in respect of the plaint schedule proeprty in the event of the petitioner withdrawing the appeal that he filed a memo to the effect that he is not pressing the appeal, that after the appeal was dismissed when he went to the Village Office, the Village Officer declined to receive the tax and therefore, the appeal may be restored to file. I.A.No.1750 of 2010 was heard and dismissed by the lower appellate court on 8.2.2011. I.A.No.1750 of 2010 was heard and dismissed by the lower appellate court on 8.2.2011. The order passed by the lower appellate court dismissing I.A.No.1750 of 2010 reads as follows: “Heard. The appeal is dismissed as not pressed. Hence there is no question of restore the same. Hence I.A.dismissed”. The said order is under challenge in this original petition filed under Article 227 of the Constitution of India. 3. The main ground raised in the original petition is that the petitioner filed a memo in the appeal to the effect that he is not desirous of prosecuting the appeal believing the promise of the Village Officer that if the appeal is withdrawn, he will receive the tax in respect of the plaint schedule property from the petitioner, that later, after the appeal was dismissed as not pressed, the Village Officer declined to accept the tax and therefore the petitioner was constrained to file an application to set aside the order dismissing the appeal as not pressed. The petitioner has also averred that when the Village Officer declined to receive the tax notwithstanding the promise held out by him earlier, he filed Ext.P5 representation dated 30.10.2010 before the Tahsildar, Taliparamba Taluk, that the Tahsildar in turn called for a report from the Village Officer, that the Village Officer submitted Ext.P4 report virtually admitting the petitioner's claim, but notwithstanding such a report, tax was not received from him and that was the reason why he is constrained to file the instant original petition challenging the order passed by the first appellate court on 8.2.2011 dismissing I.A.No.1750 of 2010 in A.S.No.70 of 2004. 4. I heard Sri.M.V.Amaresan, learned counsel apeparing for the petitioner and Sri.Sojan James, learned Government Pleader appearing for the respondents. I have also gone through the pleadings and the materials on record. It is evident from the judgment delivered by the lower appellate court on 30.9.2010 that A.S.No.70 of 2004 was dismissed as not pressed in the light of the memo filed by the petitioner that he is not pressing the appeal. Within thirty days thereafter, the petitioner had filed I.A.No.1750 of 2010 to restore the appeal to file. That application was dismissed by order passed on 8.2.2011 on the short ground that as the appeal was dismissed as not pressed, there is no question of restoring the appeal to file. Within thirty days thereafter, the petitioner had filed I.A.No.1750 of 2010 to restore the appeal to file. That application was dismissed by order passed on 8.2.2011 on the short ground that as the appeal was dismissed as not pressed, there is no question of restoring the appeal to file. The order passed by the court below cannot in my opinion be sustained. Though the application was styled as one filed under Order IX Rule 9 of the Code of Civil Procedure, the appellate court should have in my opinion exercised the power conferred on it under Section 151 of the Code of Civil Procedure to recall the judgment dismissing the appeal as not pressed. A court always has the power to recall an order which has the effect of perpetrating injustice on a party. From the pleadings and the materials on record it is evident that unless the order passed by the appellate court dismissing A.S.No.70 of 2004 as not pressed is set aside and the appeal restored to file, the petitioner will be left without no remedy. The appellate court should have in such circumstances allowed I.A.No.1750 of 2012 in A.S.No.70 of 2004 and set aside the order dismissing the appeal as not pressed in exercise of its inherent power and heard and disposed of the appeal on the merits. Though the learned Government Pleader appearing for the respondents contended that the instant original petition is highly belated for the reason that it was filed only on 4.12.2012 challenging the order passed by the first appellate court on 8.2.2011, I am of the opinion that having regard to the facts stated in the original petition this Court would not be justified in dismissing the original petition on the ground of delay and laches. The petitioner has in the original petition averred that though the application filed by him to have the appeal restored was dismissed on 8.2.2011 he was pursuing the matter before the Tahsildar, that the Tahsildar had offered to set right the anomoly and that was the reason for the delay in filing the original petition. The petitioner has in the original petition averred that though the application filed by him to have the appeal restored was dismissed on 8.2.2011 he was pursuing the matter before the Tahsildar, that the Tahsildar had offered to set right the anomoly and that was the reason for the delay in filing the original petition. In such circumstances, as the order passed by the appellate court on 8.2.2011 dismissing I.A.No.1750 of 2010 and the judgment delivered by the appellate court on 30.9.2010 dismissing A.S.No.70 of 2004 as not pressed, results in injustice to the petitioner, I am of the opinion that the original petition should be allowed and the order passed by the appellate court on 8.2.2011 dismissing I.A.No.1750 of 2010 in A.S.No.70 of 2004 should be set aside and the appeal restored to file. I accordingly allow the original petition, set aside the order passed by the Court of the Subordinate Judge of Payyannur on 8.2.2011 on I.A.No.1750 of 2010 in A.S.No.70 of 2004, allow the said application, set aside the judgment delivered by the Court of the Subordinate Judge of Payyannur on 30.9.2010 dismissing A.S.No.70 of 2004, restore the appeal to file and direct the appellate court to dispose of the appeal on the merits expeditiously and in any event within four months from the date of receipt of a copy of this judgment. The parties shall appear before the Court of the Subordinate Judge of Payyanuur on 9.9.2013.