Allowed

Varghese v. Varghese

Kerala HC18 Jul 2018FAO/35/2017

Case brief

AI extract

What is this about?

This judgment reverses a lower court order dismissing a petition for readmitting a Civil Appeal due to a 988-day delay. The High Court found the lower court failed to adopt a sympathetic view regarding the appellant's serious head injury and poverty, which prevented pursuing legal recourse. The appeal is allowed, and the lower court is directed to dispose of the appeal on merits within three month

What did the court decide?

The impugned common order of 19.01.2016 is set aside. The court below shall hear and dispose of the appeal on merits within three months. Pending interlocutory applications are closed.

Varghese Vs Varghese — Civil Procedure and Limitation | 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 A.HARIPRASAD

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WEDNESDAY, THE 18TH DAY OF JULY 2018 / 27TH ASHADHA, 1940

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FAO.No. 35 of 2017

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AGAINST COMMON ORDER DATED 19.01.2016 IN IA NOS.2216/2015 AND 2216(a)/2015 IN AS NO.281/1998 OF PRINCIPAL SUB COURT, IRINJALAKUDA.

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AGAINST JUDGMENT AND DECREE IN OS NO.1419/1997 OF MUNSIFF'S COURT, IRINJALAKUDA.

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APPELLANT/APPELLANT/6TH DEFENDANT

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VARGHESE S/O. KIDANGAN ANTONY KUTTIKAD DESOM, PARIYARAM, CHALAKUDY, THRISSUR DISTRICT.

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BY ADVS.SRI.K.S.RAJESH

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SRI.M.SHAJU PURUSHOTHAMAN

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RESPONDENTS/RESPONDENTS/PLAINTIFF AND DEFENDANTS 1 TO 4:

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VARGHESE,

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S/O. MALIYEKKAL OUSEPH,

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KUTTIKAD DESOM, PARIYARAM, CHALAKUDY, THRISSUR DISTRICT,

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PIN - 680721.

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ASSISTANT ENGINEER, IRINJALAKUDA PROJECT, IRIGATION OFFICE, THUMBOORMUZHI,CHALAKUDY, PIN -680307

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EXECUTIVE ENGINEER, IRIGATION PROJECT, IRIGATION DEPARTMENT, CHALAKUDY, PIN -680307

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CHIEF ENGINEER,

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MAJOR IRIGATION DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM, PIN 695001

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VILLAGE OFFICER, PARIYARAM VILLAGE OFFICE,

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PARIYARAM, CHALAKUDY, THRISSUR DISTRICT PIN 680 721

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R1 BY ADVS. SRI.V.V.SURENDRAN

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SRI.P.A.HARISH

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R2 TO R5 BY GOVERNMENT PLEADER SRI SHYAMJIRAM

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THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 18-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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A.HARIPRASAD, J. -------------------------------------F.A.O.No.35 of 2017

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Dated this the 18^th day of July, 2018

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JUDGMENT

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Appellant is the defendant in O.S.No.1419 of 1997 filed before the Court of Munsiff, Irinjalakuda. The suit was decreed against the appellant. Hence he preferred A.S.No.281 of 1998 before the Court of Principal Sub Judge, Irinjalakuda. The appeal was dismissed for nonappearance of the appellant's counsel on 22.11.2012. Appellant, after 988 days, filed a petition under Order XLI Rule 19 of the Code of Civil Procedure, 1908 (in short, “Code”) for readmitting the appeal to file. That application was dismissed finding that 988 days delay was not properly explained.

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Heard the learned counsel for the appellant, contesting respondent and the Government Pleader.

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Learned Sub Judge found that there are medical records to show that the appellant sustained a serious injury on 10.07.2011. He

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FAO No.35 of 2017 2

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sustained an injury on head causing internal hemorrhage. PW1, Dr.Mathew, who treated the appellant, testified that the appellant was under his treatment till 28.07.2011. Exts.A1 to A3 produced on the side of the appellant would show gravity of the injury. Court below found that the medical records do not extend upto the period of November, 2012. Therefore the appellant had no sufficient cause for not proceeding with the appeal.

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It appears that the court below had not taken a pragmatic view. Going by the nature of injury sustained by the appellant, the court below should have seen that the appellant, hailing from poor circumstances, must have been prevented from exercising his daily pursuits on account of grave injury. Instead of adopting a sympathetic stand in the facts and circumstances of the case, the court took a harsh stand, which cannot be justified. Having regard to the facts and circumstances, I find that the impugned common order passed by the court below cannot be sustained.

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In the result, the appeal is allowed. The impugned common order dated 19.01.2016 passed by the Principal Sub Judge, Irinjalakuda on I.A.Nos.2216 of 2015 and 2216(a) of 2015 in A.S.No.281 of 1998 is hereby set aside. Court below shall hear and dispose of the appeal, on merits,

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FAO No.35 of 2017

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within three months from the date of receipt of a copy of this judgment.

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All pending interlocutory applications will stand closed.

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A.HARIPRASAD, JUDGE.

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cks

Varghese v. Varghese

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Varghese v. Varghese

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