Allowed

Jetty John v. Rajan Cheriyathu

Kerala HC3 Jul 2019OP(C)/694/2019

Case brief

AI extract

What is this about?

The single judge allowed the Original Petition and set aside the impugned order dismissing a Review Application. The court held the ex-parte dismissal was erroneous as the Lower Court overlooked the vacation closure, making the application timely. The matter is remanded for further trial.

What did the court decide?

The Original Petition is allowed, the Impugned Order (Ext.P4) is set aside, and the Review Application (I.A.No.451/2016) is reinstated. The case is remanded to the trial court to fix a date for remitt

Jetty John Vs Rajan Cheriyathu — Execution and Attachment | 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 SUNIL THOMAS

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WEDNESDAY, THE 03RD DAY OF JULY 2019 / 12TH ASHADHA, 1941

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OP(C).No.694 of 2019

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AGAINST THE ORDER/JUDGMENT IN OS 79/2014 of SUB COURT, PATHANAMTHITTA DATED 04-02-2019

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PETITIONER:

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JETTY JOHN, AGED 41 YEARS, S/O. JOHN, RESIDING AT JERRY SADANAM, ADOOR P.O. , PANNIVIZHA MURI, ADOOR VILLAGE, ADOOR TALUK, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER JOHN, AGED 76 YEARS, S/O. LATE GEORGE, RESIDING AT JERRY SADANAM, ADOOR P.O, PANNIVIZHA MURI, ADOOR VILLAGE, ADOOR TALUK.

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BY ADVS. SRI.D.KISHORE SMT.MEERA GOPINATH SMT.MINI GOPINATH SRI.R.MURALEEKRISHNAN (MALAKKARA)

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RESPONDENT:

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RAJAN CHERIYATHU S/O. NANU, RESIDING AT AKHIL NIVAS, MUTTATHUKONAM MURI, CHENNEERKARA VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT-689 641

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 03.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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OP(C).No.694 of 2019

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JUDGMENT

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Petitioner is the plaintiff in O.S.No.79/2014 of Sub Court, Pathanamthitta, which is a suit for realisation of advance paid to the defendant. The suit stood posted to 19.03.2016 for payment of court fee. On that day, there was no representation and the suit was dismissed for default. Thereafter, I.A.No.451/2016 was filed to review the order dated 19.03.2016 rejecting the plaint. This was dismissed by the court below by Ext.P4 order on the premise that the application was filed after the 30 days

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period prescribed for filing the applications for review. This is assailed in this O.P.(C).

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2. Notice was served on the respondent, who has not chosen to appear and to contest the proceedings. Heard the learned counsel for the petitioner.

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3. According to the learned counsel for the petitioner, the reason stated by the court below is not correct. According to the counsel, the explanation offered was that due to an oversight, the date of posting was noted as 29.03.2016 in stead of

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OP(C).No.694 of 2019

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19.03.2016. The court closed for summer vacation on 11.04.2016 and reopened on 19.05.2016. The application was filed on the reopening date itself. Reckoned on that basis, there is no delay, it was contended.

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4. I have perused Ext.P3(a) which is the objection filed by the respondent. Except a bare allegation that sufficient cause was not explained, the specific allegation that there was a mistake on the recording of the date is not seen disputed. In the absence of any other material, I am inclined to prima facie believe the version of the petitioner herein.

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5. Regarding the delay, it seems that the court below overlooked the fact that the court stood closed on 11.04.2016 and reopened on 19.05.2016. Since the application was filed on the reopening day, evidently there was no delay. This seems to be an error committed by the court below which is liable to be corrected.

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6. Having considered these, I feel that the

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OP(C).No.694 of 2019

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court below ought to have allowed Ext.P3 application and consequently Ext.P4 order is not legally sustainable. Hence, I am inclined to allow the O.P. (C).

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Accordingly, O.P.(C) is allowed. Ext.P4 is set aside. I.A.No.451/2016 stands set aside and consequently the court below shall take the record on file and post the case for payment of balance court fee to a near date as a last chance. If the amount is not remitted on the day fixed by the court, the court below will be free to pass appropriate orders. The court below shall fix a date for appearance of the parties immediately on receipt of a copy of this judgment and fix a date for remitting the balance court fee. If the defendant remains absent, the court below shall issue fresh summon to him for his

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appearance.

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Sd/-

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SUNIL THOMAS, JUDGE

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Pn 04/07

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OP(C).No.694 of 2019

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S. 79/2014 OF THE SUB COURT, PATHANAMTHITTA. EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT IN O.S. 79/2014 OF THE SUB COURT, PATHANAMTHITTA. EXHIBIT P3 TRUE COPY OF THE I.A. 451/2016 IN O.S. 79/2014 OF SUB COURT, PATHANAMTHITTA. EXHIBIT P3 A TRUE COPY OF THE OBJECTION TO EXHIBIT P3 EXHIBIT P4 TRUE COPY OF THE ORDER DATED 4.2.2019 IN I.A. 451/2016 IN O.S. 79/2014 OF SUB COURT, PATHANAMTHITTA.

Jetty John v. Rajan Cheriyathu

Case brief

What is this about?

What did the court decide?

Jetty John v. Rajan Cheriyathu

Case brief

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What did the court decide?

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