Allowed

C.E.Subramanya v. M.H.Subramanya Bhat

Kerala HC19 Mar 2018FAO/147/2017

Case brief

AI extract

What is this about?

The High Court of Kerala allowed an appeal against an order dismissing a suit for default. The court set aside the dismissal and restored the probate suit to the District Court, applying a liberal view due to the nature of the subject matter and lack of misconduct.

What did the court decide?

The appeal was allowed; the impugned order was set aside; O.S. No. 2 of 2016 was restored to file.

C.E.Subramanya Vs M.H.Subramanya Bhat — Specific Performance | Kerala HC (2018)

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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 P.N.RAVINDRAN

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THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

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MONDAY, THE 19TH DAY OF MARCH 2018 / 28TH PHALGUNA, 1939

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FAO.No. 147 of 2017

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ORDER IN I.A.NO.20/2017 IN OS NO2/2016 DT.13.2.2017 OF THE DISTRICT COURT, KASARAGOD

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

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C.E.SUBRAMANYA, AGED 58 YEARS, S/O.ISHWWARA BHAT, R/AT BALLUR HOUSE, BADIADKA VILLAGE, KASARAGOD TALUK AND DISTRICT, P.O.KUMBADAJE, PIN - 671 551.

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BY ADVS.SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR SMT.VANDANA MENON

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RESPONDENT(S)/(RESPONDENTS/DEFENDANTS):-:

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1. M.H.SUBRAMANYA BHAT, AGED ABOUT 51 YEARS, S/O.MAHALINGA BHAT, R/AT NO.8, SRI.CHARANA, 21ST MAIN, GIRINAGAR, T BLOCK, BANGALORE - 560 085.

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2. DURGAPARAMESHWARI, AGED ABOUT 59 YEARS, W/O.LATE JANARDHANA BHAT, R/AT GAJANTHODU HOUSE, PERUVAIL VILLAGE AND POST, BANTWAL TALUK, D.K.DISTRICT.

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3. SHAKUNTHALA, AGED ABOUT 60 YEARS, W/O.LATE KRISHNA BHAT, R/AT SADASHIVA NILAYA, BOLLUR, BADIADKA VILLAGE, KASARAGOD TALUK & DISTRICT, P.O.KUMBADAJE - 671 551.

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THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 19-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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KAV/

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P.N.RAVINDRAN & R.NARAYANA PISHARADI, JJ.

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F.A.O.No.147 of 2017

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Dated this the 19^th day of March, 2018

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JUDGMENT

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P.N.Ravindran, J.

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This appeal arises from the order passed by the Court of the District Judge of Kasaragod on 13.2.2017 dismissing I.A.No.20 of 2017 in O.S.No.2 of 2016, an application filed by the appellant under Order IX Rule 9 of the Code of Civil Procedure with a prayer that the order dismissing O.S.No.2 of 2016 for default may be set aside and the suit restored to file. The brief facts of the case are as follows:

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The appellant herein instituted O.P.No.76 of 2014 under Section 276 of the Indian Succession Act, 1925 seeking probate of a Will stated to have been executed by one Lakshmi Amma on 4.12.2009. Lakshmi Amma died on 10.1.2011. The respondents contested the application and thereupon it was numbered as O.S.No.2 of 2016. O.S.No.2 of 2016 thereafter stood posted on 13.10.2016. It appears, on that day there was no representation for the plaintiff. However, on noticing that the balance court fee had not been paid, the learned trial judge adjourned the suit to 17.11.2016 with a direction to the plaintiff to pay the balance court fee in the meanwhile. On 17.11.2016 also there was no representation for the plaintiff.

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F.A.O.No.147 of 2017

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-:2:-

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Consequently the suit was adjourned to 30.11.2016. On that day also the plaintiff as well as his counsel were absent. Consequently, the learned trial judge dismissed the suit for default.

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The plaintiff thereupon filed I.A.No.20 of 2017 to have the order dismissing the suit for default set aside and the suit restored to file. He had in the affidavit filed in support of the application averred that he was laid up due to fever and uneasiness, that there was relapse on two occasions and therefore he could not take proper steps in time. The respondents resisted the application contending inter alia that the absence of the plaintiff was deliberate and intentional. The trial court after considering the rival contentions dismissed I.A.No.20 of 2017 by order passed on 13.2.2017. Hence this appeal.

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This appeal was presented on 30.6.2017 with a delay of 29 days in filing the appeal. The appellant had filed C.M.Appln.No.497 of 2017 to condone the said delay. When the said application came up for consideration before a Division Bench of this court on 15.9.2017, this court directed consolidated notice to be issued to the respondents in the application to condone delay as well as in the appeal. Thereupon notice was sent to the respondents from this court by registered post acknowledgement due on 27.9.2017 with the hearing date fixed as 9.10.2017. Though the respondents were thereupon served, they have not entered appearance. They were also not present

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F.A.O.No.147 of 2017

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in person. We have by a separate order passed today allowed C.M.Appln.No.497 of 2017 and condoned the delay of 29 days in filing the appeal.

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The instant suit is one filed under Section 276 of the Indian Succession Act, 1925, seeking probate in respect of a Will executed by one Lakshmi Amma. That suit was dismissed for default on 30.11.2016. A Division Bench of this court has in Kurian @ Jacob v. Chellamma John and Others (2017 (4) KLT SN 55) held, after a survey of the relevant statutory provisions and the case law on the point, that the right to apply for probate or letters of administration accrues daily if the Will remains unprobated and therefore, for probate proceedings there is no limitation. The Division Bench thereafter proceeded to hold that the right to apply for probate/letters of administration does not necessarily accrue from the date of the testator's death, that the right to apply for probate/letters of administration is a continuing right and the reckoning point is the happening of an event triggering the cause of action; a dispute involving a legatee's rights. As the dismissal of the suit wherein the relief sought was to grant the probate of a Will and as the cause of action is a recurring cause of action, we are of the opinion that a lenient view should have been taken and the suit restored to file.

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A Division Bench of this court has in Plantation Corporation

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F.A.O.No.147 of 2017

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of Kerala Ltd. v. Hussain (1998 (1) KLT 1008) held that when sufficient cause is shown, the reopening of a suit which is dismissed for default is mandatory and when sufficient cause is not shown it is discretionary. The Division Bench thereafter proceeded to hold that even in cases where the plaintiff could not establish sufficient cause still the court should exercise its discretion to restore the suit to file depending upon the facts of each case. It was held that is the reason why the legislature has given power to the courts to set aside the order of dismissal “on such terms as to costs or otherwise as it thinks fit.” The Division Bench held that the term “sufficient cause” is an elastic expression which confers wide discretion on the court to apply the law in a meaningful manner so as to subserve the ends of justice. The Division Bench also held that the broad principle of natural justice that informs our judicial institutions is that a litigant should not be deprived of a hearing unless there has been something equivalent to misconduct or gross negligence on his part. In the instant case, the subject matter of the suit is a Will. The relief sought in the suit is one for grant of probate. Such being the situation, we are of the opinion that a liberal view should be taken and the suit restored to file so as to enable the plaintiff to have the issues raised in the suit tried and disposed of on the merits.

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We accordingly allow the appeal, set aside the impugned order

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F.A.O.No.147 of 2017

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and restore O.S.No.2 of 2016 to the file of the District Court, Kasaragod. The appellant/plaintiff shall appear in the District Court, Kasaragod through counsel on 9.4.2018. The District Court shall on that day issue notice to the respondents/defendants by registered post acknowledgement due. Notice shall also be served on the counsel who was earlier appearing for them. The court below shall thereafter try and dispose of the suit on the merits after affording the plaintiff an opportunity to pay the balance court fee, if such payment is necessary.

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P.N.RAVINDRAN JUDGE

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R.NARAYANA PISHARADI JUDGE

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vpv

C.E.Subramanya v. M.H.Subramanya Bhat

Case brief

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C.E.Subramanya v. M.H.Subramanya Bhat

Case brief

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