Prathipal vs State of Kerala

Thottathil B. Radhakrishnan, J.—This appeal is against the order by which the court below refused to restore a suit dismissed for default. Having bestowed our anxious consideration to the different aspects of the matter, including the cause of action in the suit, we are of the view that no cause of action actually existed for the institution of the suit from which this appeal arises. We say so because, the suit is for the movables (gold) or value thereof taken into custody by police in the course of search and seizure etc. Primarily, such movables will have to be dealt with under Ss. 451 and 452 of Cr. P.C. may be even ultimately by this Court under S. 397 of Cr. P.C.

We may notice the judgments of this Court in Chacko Vs. Paily, = Chacko Vs. Paily, and Kuttappan Achari Vs. State of Kerala, clearly laying that the cause of action would arise only on termination of the proceedings in the criminal court, in relation to custody of movables and the period of limitation for such suit would run on the basis of the date of such final decision. Therefore, we are of the view that in the instant case, the court below ought to have rejected the plaint by holding that no cause of action is disclosed in it. As a consequence, the plaintiff would have been entitled to refund of the entire court fee paid on the plaint. In the muddle in which the litigation has reached, we are inclined to take a lenient view and set aside the impugned order to facilitate the court below to act on the plaint in the light of what is stated above.

In the result, the appeal is allowed. The impugned order is set aside O.S. No. 89 of 2008 will stand restored to file of the Sub Court, Chengannur. The court below will proceed to decide whether it discloses a cause of action or the plaint is liable to be rejected under O. VII R. 11 of CPC as indicated above. If such an order is passed rejecting the plaint, necessary consequential order of refund of the court fee would also be passed. Parties are directed to mark appearance before the court below on 17.12.2012.