Partly allowed

Rajan @ K.G.Veluswamy v. Radhammal @ Radhamani Amma

Kerala HC24 Oct 2019OP(C)/3569/2017

Case brief

AI extract

What is this about?

The High Court set aside an appellate order dismissing an application for recall of judgment and condonation of delay, applying Jayalakshmi v. Avara. It restored the appeal for disposal within 45 days due to the appellate court failing to notify respondents after counsel reported no instructions.

What did the court decide?

Ex parte order set aside, recall application allowed, delay condoned, appeal restored to appellate court for disposal within 45 days.

Rajan @ K.G.Veluswamy Vs Radhammal @ Radhamani… — 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 B.SUDHEENDRA KUMAR

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THURSDAY, THE 24TH DAY OF OCTOBER 2019 / 2ND KARTHIKA, 1941

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OP(C).No.3569 OF 2017(O)

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AGAINST THE ORDER/JUDGMENT IN AS 45/2009 DATED 30-11-2017 OF ADDITIONAL DISTRICT COURT-II & MOTOR ACCIDENT CLAIMS TRIBUNAL, MAVELIKKARA

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AGAINST THE ORDER/JUDGMENT IN OS 492/2002 DATED 16-12-2008 OF MUNSIFF COURT,KAYAMKULAM

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PETITIONER/S:

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RAJAN @ K.G.VELUSWAMY AGED 47 YEARS, KURUPILAVIL THEKKETHIL VEEDU, PALACE WARD, KRISHNAPURAM, KAYAMKULAM.

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BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.P.J.JOE PAUL SRI.MANU SEBASTIAN

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RESPONDENT/S:

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RADHAMMAL @ RADHAMANI AMMA AGED 64, W/O.MEENAKSHY SUNDARAN, RADHA NIVAS, 85 KAMBAR STREET, PAZHUMPONE NAGAR, MADURA509202.

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R1 BY ADV. C. RASHEED (NO MEMO) R1 BY ADV. C. RASHEED NO MEMO R1 BY ADV. SRI.K.B.PRADEEP R1 BY ADV. SRI.RASHEED C.NOORANAD

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 24.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No.3569 OF 2017(O)

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JUDGMENT

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The petitioner is the first defendant in O.S.No.492/2002 on the files of the trial court. The trial court dismissed the suit

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and allowed the counter claim. In the appeal, the appellate court set aside the decree in the counter claim and decreed the suit as per judgment in A.S.No.45/2009, against which this original petition has been filed.

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2. It appears from paragraph 15 of the judgment in A.S.No.45/2009 that the counsel for respondent Nos.1 and 3 therein filed a memo on 3.12.2012 stating that he had no instructions from his client. The

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OP(C).No.3569 OF 2017(O)

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Court, thereafter passed the judgment ex

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parte on 13.02.2013. Thereafter, the

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petitioner filed I.A.No.279/2016 for rehearing and recalling the judgment. Along with I.A.No.279/2016, the petitioner filed I.A.No.281/2016, praying for condoning the delay in filing the said applications. The appellate court as per Ext.P9 order dated 30.11.2017 dismissed the said applications, against which, this Original Petition has been filed.

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3. Heard.

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4. It is clear from the judgment in

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A.S.No.45/2009 and Ext.P9 order that the

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counsel had filed a memo before the

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OP(C).No.3569 OF 2017(O)

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appellate court stating that the counsel had no instruction from respondent Nos.1 and 3 before the appellate court. The appellate court did not issue any notice to respondent Nos.1 and 3 after filing the memo by the learned counsel for respondent Nos.1 and 3. Thereafter, the appellate court passed the judgment on merits on 13.02.2013 without hearing the petitioner.

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5. This Court in Jayalakshmi v. Avara [2003 KHC 503 : 2003(2) KLJ 377] held that if the counsel, without informing the party, reports 'no instructions', the ex parte decree has to be set aside as it was the duty of the counsel to issue notice to

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OP(C).No.3569 OF 2017(O)

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the party before reporting 'no

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instructions'.

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6. The ratio in Jayalakshmi(supra) is squarely applicable to the case in hand. In the said circumstances, I am inclined to set aside Ext.P9 order, allowing I.A.No.279/2016 setting aside the judgment in A.S.No.45/2009, condoning the delay by allowing I.A.No.281/2016 and the appeal stands restored to the files of the appellate court. The appellate court is directed to dispose of A.S.No.45/2009, in accordance with law, as expeditiously as possible, and at any rate within 45 days from the date fixed for the appearance of

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OP(C).No.3569 OF 2017(O)

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the parties before the appellate court.

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The parties shall appear before the appellate court on 20.11.2019 without

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further notice.

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Sd/JUDGE

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B. SUDHEENDRA KUMAR,

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STK

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OP(C).No.3569 OF 2017(O)

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1A TRUE COPY OF JUDGMENT DATED 16/12/2008 IN OS.NO.492/02 OF THE MUNSIFF'S COURT, KAYAMKULAM. EXHIBIT P2A TRUE COPY OF MEMORANDUM OF APPEAL IN AS.NO.45/09. EXHIBIT P3A TRUE COPY OF JUDGMENT DATED 13/02/2013 IN AS.NO.45/09.

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EXHIBIT P4A TRUE COPY OF IA.NO.279/16 FILED BY THE PETITIONER.

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EXHIBIT P5A TRUE COPY OF IA.NO.281/16 FILED BY THE PETITIONER. EXHIBIT P6A TRUE COPY OF IA.NO.280/16. EXHIBIT P7A TRUE COPY OF MEDICAL CERTIFICATE DATED 16/01/2016 ISSUED BY DR.T.K.MATHEWS.

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EXHIBIT P8A TRUE COPY OF OBJECTION TO IA.NO.281/16. EXHIBIT P9A TRUE COPY OF COMMON ORDER DATED 30/11/2017.

Rajan @ K.G.Veluswamy v. Radhammal @ Radhamani Amma

Case brief

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Rajan @ K.G.Veluswamy v. Radhammal @ Radhamani Amma

Case brief

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