Allowed

Saji Sam, v. the Chief Manager

Kerala HC29 Jan 2019FAO/6/2019

Case brief

AI extract

What is this about?

An appeal challenging the dismissal of applications to restore two other petitions dismissed for default due to an 841-day delay. The High Court allowed the impugned order to be set aside, directing the appellant to deposit Rs. 10,000 as cost to restore the original petitions.

What did the court decide?

Impugned order set aside; IA Nos. 1414 & 1415/2017 allowed on deposit of Rs. 10,000; IA Nos. 1430 & 1429/2014 restored upon compliance.

Saji Sam, Vs the Chief Manager — Civil Procedure and Limitation | Kerala HC (2019)

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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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THE HONOURABLE MRS. JUSTICE ANNIE JOHN

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TUESDAY, THE 29TH DAY OF JANUARY 2019 / 9TH MAGHA, 1940

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FAO.No. 6 of 2019

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AGAINST THE ORDER IN IA 1414/2017 AND IA 1415/2017 IN OP(ELE.) 177/2011 OF THE 1ST ADDL.DISTRICT COURT ,KOLLAM

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APPELLANT/PETITIONER:

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SAJI SAM, AGED 57 YEARS CHEMPARATHIYIL, S/O.SAMUEL, UDAYAGIRI, EDAMON P.O., EDAMON VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT.

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BY ADV. SMT.G.VIDYA

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RESPONDENTS/RESPONDENTS:

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1 THE CHIEF MANAGER, POWER GRID CORPORATION OF INDIA LTD., VILAGOM PURAYIDOM, DOCTORS LANE, PATHANAMTHITTA. PIN 689 645

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2 THE SPECIAL THAHASILDAR (COMPENSATION), POWER GRID CORPORATION OF INDIA LTD., PA(PGCI), PATHANAMTHITTA. PIN 689645

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ADV.MILLU DANDAPANI SC FOR RESPONDENTS

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THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 29.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

Fao6/2019

JUDGMENT

K.Harilal, J.

1. The appellant is the petitioner and the respondents are the respondents in O.P. (Ele.)177/2011 on the files of the Additional District Court-I, Kollam. This appeal has been filed, challenging the common order passed in I.A.Nos.1414 & 1415/2017 filed therein. The aforesaid original petition was filed, seeking an order granting compensation to the

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petitioner for the acquisition of property, owned and possessed by the petitioner. But, the said original petition was dismissed for default. Hence the petitioner filed IA 1430/2014, under Order 9 Rule 9 for restoring the original petition and

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Fao6/2019

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I.A.1429/2014 for condoning the delay in filing the restoration application. But, subsequently, the aforesaid applications were also dismissed for default. Hence the petitioner again filed I.A.1415/2017, under Order 9 Rule 9, to restore IA 1429/2014 and IA 1414/2017 to condone the delay of 841

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days in filing the restoration application.

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2. On rival pleadings, the court below considered the aforesaid petitions and dismissed both the petitions by the impugned common order. The legality and correctness of the findings, whereby the courts below dismissed the petitions are assailed in this appeal.

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3. Heard the learned counsel for the

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petitioner and the learned standing counsel

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for the respondents. Learned standing counsel for the Power Grid Corporation

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Fao6/2019

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strongly opposed the applications.

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4. Earlier, the suit was dismissed on default and the petitioner had filed an application to restore the suit and to condone the delay in filing the said application. But, those applications were also dismissed on default and there is an inordinate delay of 841 days in filing the application to restore IA Nos.1430/2014 and 1429/2014. According to the petitioner, he has lost his telephone and he was unable to contact his advocate. He came to know about the dismissal after 841 days from the date of dismissal of the applications on default.

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The aforesaid reason stated in the application itself would amount to an admission from the part of the petitioner himself that he was not diligent in prosecuting the original petition.

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Fao6/2019

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Therefore, we do not find fault with the court below in dismissing the applications.

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5. However, we are inclined to take a liberal view, in a different perspective. Adjudication of a lis on merits is always desirable than dismissal on technicality. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred rather than dismissal on technicality.

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6. In the above view, we are of the opinion that the petitioner can be given one more opportunity to contest the original petition, on merits. The impugned order, therefore, would stand set aside and IA Nos.1414 & 1415/2017 would stand allowed, on deposit of Rs.10,000/- in the court below within a period of one month from the date

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Fao6/2019

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of receipt of a copy of this judgment. The respondents are allowed to realise the said amount equally, as cost. On compliance, IA Nos.1430 & 1429/2014 would stand restored to the files. However, it is made clear that the petitioner is not entitled to get interest for a period of 841 days, if compensation is granted to the petitioner.

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7. The appeal is disposed of accordingly.

Sd/-

K.HARILAL

JUDGE

Sd/-

ANNIE JOHN

JUDGE

sl.

Saji Sam, v. the Chief Manager

Case brief

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What did the court decide?

Saji Sam, v. the Chief Manager

Case brief

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