Allowed

K.M.Gopinathan, v. K.M.Sethumadhavan

Kerala HC19 Feb 2019FAO/27/2019

Case brief

AI extract

What is this about?

The Kerala High Court set aside an order dismissing a civil suit on default in an appeal filed by a senior citizen petitioner. The court exercised its liberal view to restore the suit for trial on merits, contingent upon depositing costs by the petitioner.

What did the court decide?

Impugned order set aside on deposit of Rs. 5,000 as cost to the respondent within one month; Sub Court to restore O.S. and dispose on merits.

K.M.Gopinathan, Vs K.M.Sethumadhavan — 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 19TH DAY OF FEBRUARY 2019 / 30TH MAGHA, 1940

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FAO.No. 27 of 2019

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AGAINST THE ORDER IN I.A.NO.1802/2017 IN OS 66/2011 of SUB COURT, TIRUR DATED 21-11-2018

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APPELLANT/ PETITIONER/ PLAINTIFF :

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K.M.GOPINATHAN, AGED 69 YEARS, S/O KUNHIRAMAN NAIR, GOKULAM HOUSE, PUTHUR AMSOM, CHERUKUNNU DESOM, POST PUTHUR, TIRUR TALUK, MALAPPURAM DISTRICT.

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BY ADV. SRI.C.M.MOHAMMED IQUABAL

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RESPONDENTS/ RESPONDENTS/ DEFENDANTS :

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1 K.M.SETHUMADHAVAN, AGED 60 YEARS, S/O KUNHIRAMAN NAIR, LAKSHMI HOUSE, PUTHUR AMSOM, CHERUKUNNU DESOM, POST PUTHUR, TIRUR TALUK, MALAPPURAM DISTRICT, PIN - 676 503.

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2 V.M.KUNHILAKSHMI AMMA, W/O KUNHIRAMAN NAIR, AGED 67 YEARS, MARATH HOUSE, PANG AMSOM DESOM, POST PANG SOUTH, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT, PIN - 679 338

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R1 BY ADV.T.K.SAIDALIKUTTY

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THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 19.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING :

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FAO.No. 27 of 2019

JUDGMENT

K.Harilal, J.

The appellant is the plaintiff in

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OS.No.66/2011 on the files of the Sub Court, Tirur. He is confronting with an order dismissing the aforesaid original suit on default. Aggrieved by the dismissal of the suit on default, he filed IA.No.1802/2017 seeking an order to restore the said O.S. on the files. According to him, on the day when the case was listed for trial, while he was proceeding to the court, he was held up with heavy traffic block. He could not inform the same to his counsel also. Consequently, the aforesaid suit happened to be dismissed on default due to his absence.

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FAO.No. 27 of 2019

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The respondent resisted the said

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application contending that there is no bona fide in the reason stated for his absence. A previous suit instituted by him was also dismissed in the same manner. However, the court below dismissed the said application on a finding that even though he was held up in traffic block, he could have informed his counsel. The legality and correctness of the aforesaid finding is under challenge in this appeal.

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Heard the learned counsel for the

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petitioner.

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Though notice has been duly served by

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special messenger to the respondent, none appears

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for the respondent. We have meticulously considered the reason stated for his nonappearance and the findings thereon rendered by the court below. We do not find fault with the court

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FAO.No. 27 of 2019

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below in rejecting the reason stated by the

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petitioner for his absence before the court, when the case was called on for trial.

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But, we are inclined to take a liberal

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view considering the interest of just. Adjudication of a lis on merits is always desirable than dismissal on

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technicality. The petitioner can be given an opportunity to proceed with the suit for disposal on merits on terms only. That apart, the petitioner is a senior citizen aged 69 years.

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In the above view, the impugned order would stand set aside on deposit of Rs.5,000/within one month from today, before the court below, as cost to the respondent. The respondent is allowed to realise the said amount from the court as cost to him. On compliance, the Sub Court shall restore the aforesaid O.S. to the files, proceed

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FAO.No. 27 of 2019

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accordingly and dispose of on merits. In the event of failure, the impugned order would stand, in

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force, as such.

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This F.A.O. is disposed of accordingly.

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Sd/- K.HARILAL, JUDGE

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Sd/- ANNIE JOHN, JUDGE

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RKM

K.M.Gopinathan, v. K.M.Sethumadhavan

Case brief

What is this about?

What did the court decide?

K.M.Gopinathan, v. K.M.Sethumadhavan

Case brief

What is this about?

What did the court decide?

What the court decided

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