Single judge review petition challenging dismissal of a writ petition. Review held distinguishable from cited precedent as no explanation was offered for petitioner's non-appearance. Rehearing denied and petition rejected.
Review petition rejected; no re-hearing permitted.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
FRIDAY, THE 16TH DAY OF DECEMBER 2016/25TH AGRAHAYANA, 1938
R.P.No. 1064 of 2016 IN W.P(C).19404/2008-I
AGAINST THE JUDGMENT IN W.P(C) 19404/2008 DATED 25.11.2016 OF HIGH COURT OF KERALA.
REVIEW PETITIONER(S):-
S.ARUMUGHAM, S/O.SEKHAR, DOOR NO.32, NETHAJI NAGAR, MULLAMKUZHY, KOTTAYAM.
BY ADV. SRI.V.B.PREMACHANDRAN.
RESPONDENT(S):-
1. THE MUNICIPAL COUNCIL, KOTTAYAM, REPRESENTED BY THE CHAIRMAN, MUNICIPAL COUNCIL, KOTTAYAM - 686 001.
2. THE KOTTAYAM MUNICIPALITY, KOTTAYAM, REPRESENTED BY THE SECRETARY, KOTTAYAM MUNICIPALITY, KOTTAYAM - 686 001.
R1 & R2 BY ADV. SRI.PHILIP J.VATTIKKAD.
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 16-12-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:-
R.P.NO.1064 OF 2016 IN W.P.(C) NO.19404 OF 2008-I
APPENDIX
REVIEW PETITIONER'S ANNEXURES:-
ANNEXURE-I TRUE COPY OF THE JUDGMENT REPORTED IN 1980 KLT 307 (DB).
RESPONDENT'S ANNEXURES:-
------------------------NIL.
Vku/ [ true copy ]
K. Vinod Chandran, J
-------------------------------------------------------------------R.P.No.1064 of 2016 in W.P.(C) No.19404 of 2008-I
Dated this the 16th day of December, 2016
ORDER
When the writ petition was posted for hearing, none
appeared for the petitioner; the learned Counsel for the respondent-Municipality was heard and the writ petition disposed of. Admittedly there was no representation at the time when the writ petition was taken up for hearing. The review petition takes a ground relying on the judgment of a Division Bench of this Court reported in 1980 K. L. T. 307 [ M.V.George V. S.M.S.Traders ] , that a judgment does not become a judgment on merits for reason only of the judgment being purportedly disposed of on merits. This Court is of the definite opinion that the the decision relied on is not at all applicable to the present case.
RP.1064 of 2016 in - 2 - WP(C).19404 of 2008
defendant on a particular day, when he was examined on the previous day and the case posted to the next day for further examination. The Division Bench found that the defendant, who had contested the suit and offered himself for examination on the previous day was not present on the next day for continuing the examination for reason of an illness. The lawyer appearing for the said defendant was not informed of the same at the time when the matter was taken up and on his submission the case was posted after lunch. After lunch the lawyer was constrained to report no instructions, as a result of which, the Court took the matter for judgment which was delivered later, after 2 days. It also came out that the lawyer later received a telegram, in the afternoon, that the defendant was suddenly incapacitated.
one under Rule 3 or Rule 2 of Order 17 of the CPC. The issue arose also in the context of the the defendant having filed an application under Rule 13 of Order 9, which the plaintiff argued was not maintainable since the decision was on merits under Rule
RP.1064 of 2016 in - 3 - WP(C).19404 of 2008
3 of Order 17. The Division Bench noticed the amendment brought
to the CPC and the explanation added to Rule 2 of Order 17. It was found that if the disposal was under the main part of Rule 2 of Order 17 then the application for restoration would not stand. The disposal was one under the Explanation to Rule 2 of Order 17 which the Court found was amenable to an application to set aside an ex parte decree. It was in such circumstance that the Court held that though the judgment considered the issue on merits, it could not be said to be a disposal on merits. Though the judgment was one passed purportedly under Rule 3 it could be only one under the Explanation to Rule 2 of Order 17, was the finding. There is no such distinction possible in the above case where a writ petition which was posted in the hearing list as a Targeted For Disposal (TFD) case, was taken up in the regular course and the hearing proceeded with, in the absence of the learned Counsel appearing for the petitioner and the Court being offered no particular explanation at that instance, for the non appearance.
RP.1064 of 2016 in WP(C).19404 of 2008
a re-hearing of the matter, which cannot be permitted and no error apparent on the face of the record is pointed out. The claim raised in the writ petition and the review petition is based on Exhibit P2. Exhibit P2 indicates an effort made by the Government to stop the practice of the local authorities making appointments on a daily wage basis for sanitation works to be carried out within the jurisdiction of the local authority. Earlier the government had brought out an order dated 22/04/1982 laying down guidelines for making temporary appointments, flouting which appointments were made. Noticing appointments having been made even in violation of the guidelines, the Government as a one time measure directed regularization of those persons appointed up to 31/12/1991 by an order of even date. However since such appointments on daily basis continued, the Government directed the local authorities to terminate such daily wage employees and later finding such termination affecting the sanitation works, had also directed regularization of such persons who had been in service as on
RP.1064 of 2016 in - 5 - WP(C).19404 of 2008
31/12/2000 and continued till 29/03/2001, the date of Exhibit P2 order. The writ petition was dismissed on the ground that there was nothing to substantiate the engagement of the petitioner on 31/12/2000 or his continuance till 29/03/2001. The local authority also raised a dispute about the genuineness of Exhibit P1 muster roll produced, which again indicated the engagement of the petitioner for only 8 days in the year 1996.
In such circumstances, the review petition would stand rejected.
Sd/- K.Vinod Chandran Judge
vku/-
[ true copy ]
2 issues framed by the court
Whether the judgment dismissed in the writ petition constituted a disposal on merits, making a restoration application under Order 9 Rule 13 CPC maintainable.
Whether an error apparent on the face of the record justifies admitting the review petition to grant a re-hearing.
Colour shows how this judgement treated each authority
M.V.George V. S.M.S.TradersDistinguished¶28
1980 K. L. T. 307 (DB)
S.ARUMUGHAM
THE MUNICIPAL COUNCIL, KOTTAYAM
THE KOTTAYAM MUNICIPALITY, KOTTAYAM
K.VINOD CHANDRAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
