Allowed

Shanmughan Achari v. Baiju

Kerala HC23 Jun 2016CRP/71/2016

Case brief

AI extract

What is this about?

This revision petition challenged the dismissal of a suit for injunction due to default. The High Court set aside the lower court orders and restored the suit on merits, conditioning relief on the petitioner compensating respondents with INR 10,000 to counteract the counsel's unexpected conduct.

What did the court decide?

The dismissal in C.M.A. No.30 of 2015 and IA No.1256 of 2014 set aside; petitioner must pay INR 10,000 to respondents within one month to restore suit.

Shanmughan Achari Vs Baiju — Civil Procedure and Limitation | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.HARILAL

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THURSDAY, THE 23RD DAY OF JUNE 2016/2ND ASHADHA, 1938

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CRP.No. 71 of 2016 ()

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CMA 30/2015 of PRINCIPAL DISTRICT COURT,KOTTAYAM AND IA NO. 1256/2014 IN OS NO. 154/2012 OF MUNSIFF' COURT, VAIKOM

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REVISION PETITIONER(S)/APPELLANT/PETITIONER/PLAINTIFF:

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SHANMUGHAN ACHARI, AGED 65 YEARS,

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S/O.LATE NEELAKANDAN ACHARI, ELAVANTHINKAL HOUSE, BRAMAMANGALAM KARA, CHEMBA VILLAGE, VAIKOM, KOTTAYAM DISTRICT.

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

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RESPONDENT(S)/RESPONDENTS/RESPONDENTS/DEFENDANTS:

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1. BAIJU, S/O.SOMAN, EDACHERIL HOUSE, BRAMAMANGALAM KARA,CHEMPU VILLAGE, VAIKOM, KOTTAYAM DISTRICT, PIN 686605.

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2. DEEPA, W/O.BAIJU, EDACHERIL HOUSE, BRAMAMANGALAM KARA, CHEMPU VILLAGE, VAIKOM,

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KOTTAYAM DISTRICT, PIN 686605.

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3. BIJU, S/O.SOMAN,EDACHERIL HOUSE, BRAMAMANGALAM KARA, CHEMPU VILLAGE,

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VAIKOM, KOTTAYAM DISTRICT, PIN 686605.

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R1 TO R3 BY ADV. SRI.A.K.RAJESH

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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K. HARILAL, J.

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= = = = = = = = = = = = = = = = = C.R.P. No. 71 of 2016

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- - - - - - -- - - - - - - - - - - - - - Dated this the 23rd day of June, 2016

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O R D E R

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The petitioner is the plaintiff in Original

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Suit No. 154 of 2012, on the files of Munsiff's

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Court, Vaikkom as well as the appellant in C.M.A. No.30 f 2015, on the files of the Principal District Court, Kottayam. The suit was for permanent prohibitory injunction, restraining the defendants from trespassing into the plaint schedule property or committing waste in the property or destroying the boundaries of the property and other reliefs. The defendants entered appearance and contested the suit.

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The suit was listed to 05.08.2014, Since

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the petitioner was laid up due to severe fever he could not appear before the trial court and counsel

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for the petitioner sought an adjournment. The court

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C.R.P. No. 71 of 2016

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-: 2 :-

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below adjourned the trial to 11.08.2014. On that day

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also the petitioner was not in a position to appear before the court. The son of the petitioner along with two witnesses were present in the court and sought for adjournment of the suit. But, the court below did not grant adjournment and resultantly, the counsel for the petitioner reported that he has relinquished the vakalath and sought for time for engaging another counsel. The trial court has refused the said prayer and dismissed the suit on default on 11.08.2014.

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Aggrieved by the dismissal, though, the

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petitioner had filed Interlocutory Application No.1256 of 2014, seeking restoration of the suit on

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the files of the trial court, the same was dismissed. Aggrieved by the said order, the petitioner preferred the above C.M.A. before the

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C.R.P. No. 71 of 2016

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-: 3 :-

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District Court and after re-appreciating the

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materials on record, the District Court also dismissed the C.M.A., confirming the findings of the trial court. Thus, the concurrent findings of the courts below, confirming the dismissal of the application, seeking restoration of the suit, are under challenge in this Civil Revision Petition.

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Going by the impugned order, it is seen that the petitioner tendered evidence as PW1 and the Doctor, who treated him was examined as PW2. Out Patient ticket was produced and marked as Ext.A1 and the Medical Certificate was produced and marked as Ext.A2. Ext.C1 is the medical prescription. The respondents adduced no evidence.

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It is the case of the petitioner that he is aged 62 years and since he was laid up due to fever, he could not appear before the court on the day,

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C.R.P. No. 71 of 2016

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when the case was posted for trial and he was

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constrained to seek for adjournment. The next day also he was not recovered from the fever. But, the

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case was happened to be dismissed on default, on the reason that the counsel also relinquished his vakalath and sought for time for engaging another counsel. Even though, the court below has reevaluated the aforesaid evidence on record, the court below also arrived at a conclusion that the evidence available on record is not sufficient to

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draw the inference that he was laid up in a position, which disabled him to appear before the court. But, at the same time, the court below has not disbelieved the evidence of PW1 and documentary

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evidence adduced by the petitioner. Put it differently, the court below was not fully satisfied with the evidence adduced by the petitioner.

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C.R.P. No. 71 of 2016

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-: 5 :-

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But, on an analysis of sequence of events,

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this Court is of the view that the suit happened to be dismissed, when the counsel for the petitioner abruptly relinquished the vakalath, when his client was facing a difficult situation before the court. This Court is of the opinion that the counsel would not have abruptly relinquished the vakalath, in such a way, when his client was facing a threat of dismissal of his suit, on default, due to the absence of his client, before the court and certainly that might have more worsened the situation and accelerated the court to dismiss the suit on default. Therefore, this Court is of the opinion that party cannot be allowed to suffer, on account of the strange and unexpected behaviour from the part of the counsel, when the party is facing a difficult situation before the court.

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C.R.P. No. 71 of 2016

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-: 6 :-

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That apart, adjudication of a lis on

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merits, is more desirable than dismissal on technicality and when substantial justice and technical considerations are pitted against each other, substantial justice deserves to be preferred, rather than technical consideration.

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In the above view of the matter, this Court is inclined to grant an opportunity to the petitioner to contest the suit on merits, provided that he has to compensate the respondents, by paying

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cost. Consequently, the order passed in Interlocutory Application No.1256 of 2014 in Original Suit No.154 of 2012 of the Munsiff's Court, Vaikkom, and the judgment passed in C.M.A. No.30 of 2015 of the Principal District Court, Kottayam, will stand set aside, on condition that the petitioner shall pay a cost of `10,000/-(Rupees ten thousand

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C.R.P. No. 71 of 2016

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-: 7 :-

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only) to the respondents, or their counsel and produce receipt thereof before the trial court, within a period of 'one month' from the date of receipt of a copy of this judgment, failing which the aforesaid order and judgment will stand in force, as such.

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This Civil Revision Petition is disposed of accordingly.

Sd/-

K. HARILAL,

JUDGE

DST

//True copy//

P.A. To Judge

Shanmughan Achari v. Baiju

Case brief

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Shanmughan Achari v. Baiju

Case brief

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