The High Court of Kerala allowed a Petition for Call of O.P. No. 757 of 2019, finding a prior dismissal on technical grounds overrode the principle of substantial justice. The court quashed the impugned order and directed reconsideration.
Set aside the impugned order dismissing EA. No. 221 of 2018 and direct the lower court to reconsider it expeditiously.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
THURSDAY, THE 23RD DAY OF MAY 2019 / 2ND JYAISHTA, 1941
OP(C).No. 757 of 2019
(AGAINST THE ORDER IN EA.NO.221 OF 2018 IN EA.NO.82 OF 2014 IN EP.NO.91 OF 2010 IN OS 139/2004 of SUB COURT, CHERTHALA)
PETITIONER/S:
1 SARAH VARGHESE, AGED 52, W/O VARGHESE JACOB, RESIDING AT MUTHUTHOTTATHIL HOUSE, PALARIVATTOM P.O., PALARIVATTOM DESAM, VENNALA VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT, PIN CODE-682 025, REPRESENTED BY HER POWER OF ATTORNEY HOLDER, VARGIS JACOB, AGED 58, S/O P.C.CHACKO, RESIDINT AT MUTHUTHOTTATHIL HOUSE, PALARIVATTOM P.O., PALARIVATTOM DESAM, VENNALA VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT, PIN CODE-682 025.
2 MARIAM OMMEN, AGED 57, W/O. OOMEN GEORGE, RESIDING AT ARIKUPURATH HOUSE, PARUMALA P.O., PARUMALA DESAM, KADAPRA VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT, PIN CODE-689 626, REPRESENTED BY HER POWER OF ATTORNEY HOLDER, VARGIS JACOB, AGED 58, S/O P.C.CHACKO, RESIDINT AT MUTHUTHOTTATHIL HOUSE, PALARIVATTOM P.O., PALARIVATTOM DESAM, VENNALA VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT, PIN CODE-682 025.
BY ADVS. SRI.P.VISWANATHAN (SR) SRI.AJITH VISWANATHAN SRI.SHIBU JOSEPH SRI.SUNIL N.SHENOI
RESPONDENT/S:
1 M.ABDUL MAJEED AGED 58 YEARS S/O NAINA MUHAMMED, 68A, ABDUL HAMEED STREET, ARTHANGI P.O., PUDUKOTTAI DISTRICT, TAMILNADU, PIN CODE-622001.
OP(C).No. 757 of 2019
2
2 ABDUL GAFOOR AGED 55 YEARS S/O. LATE BAPUKUTTY, VELIPARAMBIL, AROOR P.O., CHERTHALA, PIN CODE-688 534.
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 23.05.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
OP(C).No. 757 of 2019
3
JUDGMENT
The petitioners are the applicants in EA.No.82/2014 and EA.No.166/2018 and the respondents in EA.No.191/2018. EA.No.82/2014 and EA.No.166/2018 were dismissed on 11.12.2018 and EA.No.191/2018 was allowed, since there was no representation on the side of the petitioners. EA.No.221/2018 was filed seeking composite relief of restoration of above review of order in EA.No.191/2018 and recalling of dismissal of other EAs'. The above application was dismissed on the ground that three separate applications ought to have been filed.
OP(C).No. 757 of 2019
4
a technical one. Definitely when substantial justice is pitted against technicalities, court should have advanced the cause of substantial justice. Having considered this, I am inclined to set aside the impugned order and direct the court below to reconsider EA.No.221/2018 in EA.No.82/2014 in EP.No.82/2014, as expeditiously as possible and pass appropriate orders accordingly.
O.P.(C) is allowed as above.
Sd/-
SUNIL THOMAS, JUDGE
R.AV
//True Copy// PA to Judge
OP(C).No. 757 of 2019
5
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 THE TRUE PHOTOSTAT COPY OF E.A.NO.82 OF 2014. EXHIBIT P2 THE TRUE PHOTOSTAT COPY OF THE ORDER PASSED IN R.P.NO.1139 OF 2015, DATED 24.5.2017.
EXHIBIT P3 THE TRUE PHOTOSTAT COPY OF E.A.NO.166 OF 2018. EXHIBIT P4 THE TRUE PHOTOSTAT COPY OF E.A.NO.191 OF 2018.` EXHIBIT P5 THE TRUE PHOTOSTAT COPY OF E.A.NO.221 OF 2018.
EXHIBIT P6 THE TRUE PHOTOSTAT COPY OF THE COUNTER AFFIDAVIT FILED BY IST RESPONDENT.
EXHIBIT P7 THE TRUE PHOTOSTAT COPY OF THE ORDER DATED 1.2.2019.
RESPONDENT'S/S EXHIBITS NIL
2 issues framed by the court
Whether to set aside a dismissal of an application on technical grounds regarding the filing of separate applications.
Whether to direct the lower court to reconsider a specific application expeditiously.
Sarah Varghese
Mariam Ommen
M. Abdul Majeed
Abdul Gafoor
Sunil Thomas
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
