Allowed

Sushama Narayanan Namboothiri v. Abraham Kurian

Kerala HC15 Mar 2021FAO/10/2021

Case brief

AI extract

What is this about?

The high court allowed an appeal against an order dismissing an application for indigent person status due to default. The court set aside the dismissal, noting pandemic restrictions and technical issues, and granted one chance to adduce evidence on indigence.

What did the court decide?

The impugned order is set aside and the court below is directed to grant a single opportunity to the petitioners to adduce evidence to establish their claim of indigence.

Sushama Narayanan Namboothiri Vs Abraham Kurian — Civil Procedure and Limitation | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE MARY JOSEPH

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MONDAY, THE 15TH DAY OF MARCH 2021 / 24TH PHALGUNA, 1942

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FAO.No.10 OF 2021

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AGAINST THE ORDER IN I.A NO.1505/2019 IN O.P(IND)No.219/2019 IN O.S No.141/2017 OF MUNSIFF'S COURT, CHANGANACHERRY

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APPELLANTS/APPLICANTS/DEFENDANTS:

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1 SUSHAMA NARAYANAN NAMBOOTHIRI, AGED 60 YEARS, W/O. LATE C.P. NARAYANAN NAMBOOTHIRI, MANIKKOTHU HOUSE, VATTAPPALLY MADAM, VAZHAPPALLY EAST VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT-686 101

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2 KRISHNADAS, AGED 35 YEARS, S/O. LATE C.P. NARAYANAN NAMBOOTHIRI, MANIKKOTHU HOUSE, VATTAPPALLY MADAM, VAZHAPPALLY EAST VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT-686 101

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3 HARIDAS, AGED 31 YEARS, S/O. LATE C.P. NARAYANAN NAMBOOTHIRI, MANIKKOTHU HOUSE, VATTAPPALLY MADAM, VAZHAPPALLY EAST VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT-686 101

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BY ADV. SRI.HARISH ABRAHAM

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RESPONDENT/RESPONDENT/PLAINTIFF:

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ABRAHAM KURIAN, AGED 69 YEARS, KALLUPURAYIL HOUSE, NEDUNGADAPPALLY P.O, SANTHIPURAM KARA, KUNNAMTHANAM VILLAGE, MALLAPPALLY, PATHANAMTHITTA -686 545

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R1 BY ADVS. SRI.J.VISHNU

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SMT.ANU BALAKRISHNAN NAMBIAR

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THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 15.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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FAO.No.10 OF 2021 2

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JUDGMENT

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Dated this the 15^th day of March 2021

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This appeal is directed against an order passed by Additional District Court-IV Kottayam on 03.11.2020 in I.A No.1505 of 2019 in O.P(Ind) No.219 of 2019 in O.S No.141 of 2017 of Munsiff's Court, Changancherry. Vide the impugned order, the court below has dismissed the Interlocutory Application for the reason that representation was not there for the counsel despite the posting of the petition by the court for enquiry as last chance.

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It is contended by the learned counsel for the appellants that enquiry in the petition was primarily conducted by the Chief Ministerial Officer and a Report was also filed. Interlocutory Application was filed by the petitioners prior to Covid-19 pandemic but due to the lockdown declared consequent to that, it was adjourned indefinitely for objection of the respondent and ultimately for consideration alongwith the suit. On 03.11.2020, it was taken up and dismissed on the same day for default. According to the learned counsel, there was no specific

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FAO.No.10 OF 2021 3

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directions from the court to the petitioners to be present on that day.

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It is further submitted that the counsel engaged by the petitioners to represent them was unable to access online media on account of some technical reasons. Thus, the petitioners were left unrepresented. According to him the impugned order is silent on the Report prepared by the Chief Ministerial Officer after holding the preliminary inquiry on the claims of the petitioners. According to him, there was no willful laches or negligence on the part of the petitioners as well as their counsel in not attending the case when called on 03.11.2020 and therefore, the impugned order needs to be interfered with and set aside so as to enable him to appear and adduce evidence to substantiate that he has no sufficient means to pay the court fee in the suit.

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The learned counsel for the respondent has contended that, thrice the case was posted for adducing evidence but all those three times, the petitioners were absent.

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I.A No.1505 of 2019 was dismissed for default. Undoubtedly the order is prejudicial to the petitioners. The suit

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FAO.No.10 OF 2021 4

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was for realisation of money and since the petitioners were unable to pay the court fee that the petition was fled seeking permission to sue as an indigent person. The impugned order only says that neither the petitioners or their counsel appear on a day which was particularly posted for adducing evidence as last chance. The order is also silent about the number of postings given to the petitioners for the purpose.

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Since the purpose behind filing of the petition being for getting exemption from payment of court fee, this court could not see any reason for the petitioners to prolong the matter by keeping away from attending the court willfully. Therefore, their absence before the court on 03.11.2020 may be due to reasons beyond their control. The counsel has also stated about his inability on the day to represent the petitioners for failure of the online facility due to some technical reasons. Moreover, the impugned order was passed in a situation when Covid-19 pandemic was prevalent and restrictions were imposed on free movement. Such being the context, the court below ought to have granted yet another opportunity to the petitioners to adduce

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FAO.No.10 OF 2021 5

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evidence to establish their claim of indigence. This Court finds it justified to set aside the order and to grant a single opportunity to the petitioners to adduce evidence.

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In the result, F.A.O is allowed. The impugned order is set aside. The court below shall permit the petitioners to adduce evidence relevant to establish their claim by granting a single opportunity to them. The court below shall pass appropriate orders in the application filed, within two weeks from the date of receipt of a copy of this judgment.

Sd/-

MARY JOSEPH

JUDGE

Sushama Narayanan Namboothiri v. Abraham Kurian

Case brief

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Sushama Narayanan Namboothiri v. Abraham Kurian

Case brief

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