Allowed

Hameed Rawther v. Abdul Latheef

Kerala HC2 Nov 2016RSA/765/2016

Case brief

AI extract

What is this about?

The Court set aside the dismissal of the appeal and the rejection of the late-filing petition, requiring the appellant to pay Rs.5,000 each to the respondents to substitute delay-based rejection with a substantive trial.

What did the court decide?

Set aside the judgment in A.S.No.56/2015 and order in I.A.309/2015; declare appellant must pay Rs.5,000 each to respondents within one month or the orders will remain in force.

Hameed Rawther Vs Abdul Latheef — Service and Employment | 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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WEDNESDAY, THE 2ND DAY OF NOVEMBER 2016/11TH KARTHIKA, 1938

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RSA.No. 765 of 2016 (G)

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AGAINST THE ORDER DATED 4-12-2015 IN IA 309/2015 IN AS 56/2015 of DISTRICT COURT, PATHANAMTHITTA

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AGAINST THE JUDGMENT & DECREE DATED 31-3-2011 IN OS 502/2008 of MUNSIFF COURT, PATHANAMTHITTA

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APPELLANT(S)/APPELLANT/PLAINTIFF:

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HAMEED MOHAMMED RAWTHER @ MOHAMMED AGED 63 YEARS, S/O.LATE HAMEED RAWTHER, POOVANKATTUMANNIL HOUSE, VALANCHUZHI MURI, PATHANAMTHITTA VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA.

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BY ADV. SRI.B.MOHANLAL

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RESPONDENT(S)/RESPONDENTS/DEFENDANTS:

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ABDUL LATHEEF S/O.LATE HAMMED RAWTHER, AGED 59 YEARS, POOVANKATTUMANNIL HOUSE, VALANCHUZHI MURI, PATHANAMTHITTA VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT, PIN-689645.

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...2

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RSA.No. 765 of 2016 (G)

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AFFIYA, AGED 47 YEARS, W/O.ABDUL LATHEER, POOVANKATTUMANNIL HOUSE, VALANCHUZHI MURI, PATHANAMTHITTA VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT, PIN-689645 3. SHAREEFA BEEVI AGED 87 YEARS, S/O.HAMMED RAWTHER, POOVANKATTUMANNIL HOUSE, VALANCHUZHI MURI, PATHANAMTHITTA VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT, PIN-689645

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R1&2 BY ADVS. SRI.JACOB P.ALEX SRI.JOSEPH P.ALEX

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 02-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

OKB

K.HARILAL, J.

R.S.A No.765 of 2016

Dated this the 2^nd day of November, 2016

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JUDGMENT

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The appellant is the appellant in A.S.No.56/2015 on the files of the District Court, Pathanamthitta as well as plaintiff in O.S.No.502/2008 on the files of the Munsiff's Court, Pathanamthitta. The trial court dismissed the suit after trial. Thereafter he filed A.S.No.56/2015 with I.A. No.309/2015 to condone the delay of 1439 days in filing the appeal. According to the appellant/plaintiff, Adv. T.S.Mohanan was appearing for him before the lower court and he has not informed him the passing of the decree and judgment after trial. It is further alleged that when he enquired about the progress of the proceedings in the suit, his advocate intimated him that there was no presiding officer in the Munsiff's Court, Pathanamthitta. Thereafter he had made a personal enquiry before the Munsiff's Court, Pathanamthitta on 23.1.2015 and came to know that the suit was dismissed on 31.3.2011. Thus, the appellant has

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RSA.765/16-G :2:

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shouldered the liability on his counsel for not informing him properly about the disposal of the case. It follows that even after the trial he has not made an enquiry in the office of his counsel as regards the fate of his case and the said laches from the part of the appellant cannot be excused. Thus, the court below is justified in finding that there is laches on the part of the appellant in conducting the case diligently. I do not find fault with the court below.

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But, I am inclined to take a lenient view, on a different perspective that adjudication of a lis on merits is always desirable than the disposal on technicalities. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred. At the same time, the hardship caused to the defendants due to the laches and negligence from the part of the appellant also shall be taken into account.

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Therefore the appellant can be given an opportunity to contest the case on merits. But he has to compensate the defendants for the hardship caused to them in terms of cost. In the above view, the impugned

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RSA.765/16-G :3:

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order passed in I.A. No.309/2015 and the judgment passed in A.S.No.56/2015 will stand set aside on payment of Rs.5,000/(Rupees Five thousand only) each as cost to the respondents or their respective counsel appearing before this Court or the lower appellate court and producing the receipt thereof before the lower appellate court within a period of one month from the date of receipt of a copy of this judgment, failing which the impugned order and judgment will stand in force as such. Needless to say, I.A. No.309/2015 will stand allowed on compliance of the said condition. The lower appellate court is further directed to dispose the appeal at the earliest, at any rate, within a period of three months from today, on compliance of the aforesaid condition.

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This Regular Second Appeal is disposed of accordingly.

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Sd/-

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K.HARILAL, Judge.

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okb

Hameed Rawther v. Abdul Latheef

Case brief

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Hameed Rawther v. Abdul Latheef

Case brief

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