Partly allowed

Baby Sheeja v. Hemalatha

Kerala HC5 Jul 2016CRP/214/2016

Case brief

AI extract

What is this about?

The High Court held that while restoration of suit should be liberal, the lower court's cost of Rs.5000 was insufficient due to plaintiffs' latches/prayers. Enhanced cost to Rs.10,000 is a condition for setting aside the default dismissal order.

What did the court decide?

The impugned order is modified to enhance costs to Rs.10,000 payable by plaintiffs to appellee's counsel as condition for setting aside the default dismissal order.

Baby Sheeja Vs Hemalatha — Partition | Kerala HC (2016)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE K.HARILAL

¶4

TUESDAY, THE 5TH DAY OF JULY 2016/14TH ASHADHA, 1938

¶5

CRP.No. 214 of 2016 ()

¶6

----------------------(I.A.NO.1641/2015 IN OS.NO.426/2011 OF SUB COURT, OTTAPALAM)

¶7

REVISION PETITIONER/2ND RESPONDENT/2ND DEFENDANT :

¶8

BABY SHEEJA, AGED 43 YEARS, D/O. RAMANKUTTY, ERAPPASSERI, AMBALAPPARA P.O., ARAVAKKAD DESOM, VADAKKUMBRAM AMSOM, OTTAPALAM TALUK, PALAKKAD DISTRICT.

¶9

BY ADVS.SRI.SANTHEEP ANKARATH SRI.ARUN MATHEW VADAKKAN

¶10

RESPONDENT(S)/PETITIONERS & RESPONDENTS 1 & 3/ PLAINTIFFS & DEFENDANTS 1 & 3:

¶11

1. HEMALATHA, AGED 63 YEARS, D/O. KUNHAN, ERAPPASSERI, AMBALAPPARA P.O., ARAVAKKAD DESOM, VADAKKUMBRAM AMSOM, OTTAPALAM TALUK,

¶12

PALAKKAD DISTRICT. PIN-679 512

¶13

2. KOMALAVALLY, AGED 58 YEARS, D/O. KUNHAN, ERAPPASSERI, AMBALAPPARA P.O., ARAVAKKAD DESOM,

¶14

VADAKKUMBRAM AMSOM, OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN-679 512.

¶15

3. NIRMALA, AGED 55 YEARS, D/O. KUNHAN, ERAPPASSERI, AMBALAPPARA P.O., ARAVAKKAD DESOM,

¶16

VADAKKUMBRAM AMSOM, OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN-679 512

¶17

4. JALAJA, AGED 51 YEARS,D/O. RAMANKUTTY, ERAPPASSERI, AMBALAPPARA P.O., ARAVAKKAD DESOM,

¶18

VADAKKUMBRAM AMSOM, OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN-679 512

2/-

-2-

CRP.NO.214/2016

5. MOHANDAS, AGED 61 YEARS, S/O. KUNHAN, ERAPPASSERI, AMBALAPPARA P.O., ARAVAKKAD DESOM, VADAKKUMBRAM AMSOM, OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN-679 512

¶23

R1 BY ADVS. SRI.V.K.UNNIKRISHNAN SRI.K.P.UNNIKRISHNAN (ELOOR)

¶24

THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05-07-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

¶25

sts

¶26

K. HARILAL, J.

¶27

C.R.P. No.214 of 2016

¶28

Dated this the 5^th day of July, 2016

¶29

ORDER

¶30

The petitioner is the defendant in O.S.No.426/2011 of the Sub Court, Ottappalam, a suit for partition and respondent in a petition for restoration of the said suit, which was dismissed for default. The case of the petitioner is that, the court below, while considering the application for restoration of the suit, categorically held that all the averments in the affidavit sworn to by the plaintiff are false. After examining the detailed cross examination of the plaintiff, the court below arrived at a conclusion that all the reasons given by the plaintiff for restoration of the suit are absolutely incorrect or false. But, subsequently the court turned around and allowed the application on a cost of Rs.5000/- to the petitioner. The legality and proprietary of the impugned order is under challenge in this C.R.P.

¶31

Going by the impugned order, it is a specific

¶32

C.R.P. No.214 of 2016 2

¶33

case of the petitioner that, the 3^rd plaintiff was conducting the case for and on behalf of the plaintiffs 1 and 2 and when the 3^rd plaintiff was laid up due to illness in her leg, the first plaintiff was entrusted with the conduct of the case. The second plaintiff is residing at Bangalore along with her family. According to the first plaintiff, she is an aged retired employee and she was also laid up due to fever; so she could not give proper instruction to her counsel and the counsel reported 'no instructions' and thereby the suit happened to be dismissed. To substantiate the said contention, the petitioner had produced Ext.A1 medical certificate issued by the Medical Officer, who treated her. The medical certificate shows that, the first petitioner had consulted the Doctor on 1.7.15 with a contusion at left ankle with hairlum failure, pain, swelling and difficulty to walk and the doctor directed her to take rest for 15 days. Admittedly, there is no evidence or medical certificate to show that, the third plaintiff was laid up, which eventually resulted

¶34

C.R.P. No.214 of 2016 3

¶35

in conduct of case on the first plaintiff. The defendant has produced the Ext.X1, copy of the attendance register kept by GHSS, Kadambur, where the third petitioner is working as a teacher. Ext.X1 was pressed into service to negate the case of the petitioner that she was laid up and Ext.X1 would show that, the third plaintiff, who is alleged to have been laid up had attended the school, where she was working as a teacher on 03.07.15 and on 06.07.2015.

¶36

After analysing the evidence on record, particularly Exts.A1 and X1, it is true that the court below has arrived at a finding that the evidence adduced by the petitioner is not satisfactory to arrive at a conclusion that they were deprived of conducting the case for the reasons beyond their control. But, thereafter the court below had taken a lenient view and allowed the petition on terms. In the matter of restoration of suit, which was dismissed on default, it is trite law that a liberal interpretation has to be taken, so as to give an opportunity to the plaintiff to contest the suit on merits. Adjudication of

¶37

C.R.P. No.214 of 2016 4

¶38

case on merits is always desirable than dismissal on technicality.

¶39

In AIR 2002 SC (1201) Ram Nath Sao v.

¶40

Gobardhan Sao , the Apex Court held that, the expression 'sufficient cause' should be considered with pragmatism in justice oriented approach rather than technical detection of sufficient cause for explaining the latches from the part of the party. Therefore, in view of the settled legal position, it cannot be held that the order restoring the suit on the files is illegal, particularly in view of the fact that the restoration was made on terms only.

¶41

However, the petitioner herein was constrained to approach this Court also due to the latches or negligence from the part of the respondents 1 to 3 herein. Therefore, this court is of the view that, cost of Rs.5000/is not sufficient and the same will stand enhanced to Rs.10,000/-. Consequently the impugned order passed in I.A.No.1641/2015 will stand modified as given below.

¶42

C.R.P. No.214 of 2016 5

¶43

The order dated 06.07.2015 dismissing the suit will stand set aside on condition that, the respondents 1 to 3/ plaintiffs shall pay a lump sum of Rs.10,000/- to the petitioner/2^nd defendant or the counsel appearing for the petitioner either before this Court or lower court and produce the receipt thereof before the court within a period of two months from today. In the event of failure, order dated 06.07.2015 dismissing the suit will stand in force.

¶44

This C.R.P. is disposed of accordingly.

¶45

STK

¶46

Sd/- K. HARILAL JUDGE

¶47

//TRUE COPY// //P.A. TO JUDGE//

Baby Sheeja v. Hemalatha

Case brief

What is this about?

What did the court decide?

Baby Sheeja v. Hemalatha

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

Thomas Vs Francis

Kesavan, S/O.Velan Vs Swayamprabha

P.B. Reghunathan Nair Vs Devakiamma

Keelath Mohammed Haji Vs Power Grid Corporation of India Ltd.

State of Kerala Vs Carborandum Universal Ltd.

Kodiyath Krishnan Vs Nalupurppattil Madhavi