Allowed

Nazeema Beevi @ Seenath Beevi v. Rasheeda Beevi @ Kunjumol

Kerala HC7 Dec 2021FAO/89/2020

Case brief

AI extract

What is this about?

This appeal challenges an order dismissing applications to restore interlocutory petitions. The High Court held that the inadvertent omission by a junior lawyer justifying default was sufficient for lenient treatment and allowed the restoration of the applications.

What did the court decide?

The impugned order dated 23.11.2019 in I.A.No.606 of 2018 was set aside, and I.A.Nos.928 and 929 of 2017 were restored on file.

Nazeema Beevi @ Seenath Beevi Vs Rasheeda Beevi @… — Service and Employment | 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 MR. JUSTICE ANIL K.NARENDRAN

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

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TUESDAY, THE 7^TH DAY OF DECEMBER 2021/ 16TH AGRAHAYANA, 1943 F.A.O.NO. 89 OF 2020

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AGAINST THE ORDER DATED 22.06.2018 IN I.A.NO.928 OF 2017 AND I.A.NO.929 OF 2017 IN O.S.NO.437 OF 2012 AND ORDER DATED 23.11.2019 IN I.A.NO.606 OF 2018 IN O.S.NO.437 OF

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2012 OF PRINCIPAL SUB COURT, KOLLAM

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APPELLANTS/APPELLANTS/DEFENDANTS 1, 2 & 3:

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1 NAZEEMA BEEVI @ SEENATH BEEVI, AGED 57 YEARS, D/O. PATHUMMAKUNJU, PALAVILAPURAM, CHANDANATHOPE P. O., MANGADU VILLAGE, KOLLAM NOW RESIDING AT FATHIMA HOUSE, CHANDANATHOPE, KOLLAM, PIN - 691 014.

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2 AMINA

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AGED 31 YEARS,D/O.NAZEEMA BEEVI @ SEENATH BEEVI PALAVILAPURAM, CHANDANATHOPE P. O., KOLLAM, PIN - 691 014.

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3 ASHARAF

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AGED 58 YEARS, S/O. SHAHUL HAMEED, NEEYIL HOUSE, MUTTAVANA, KOZHIKODE NOW RESIDING AT PALAVILAPURAM, CHANDANATHOPE P. O., MANGADU VILLAGE, KOLLAM, PIN - 691 014.

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BY ADVS.

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SRI.K.SIJU SMT.S.REKHA KUMARI SMT.S.SEETHA SMT.ANJANA KANNATH

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F.A.O.No.89 of 2020

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RESPONDENT/PLAINTIFF:

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RASHEEDA BEEVI @ KUNJUMOL AGED 68 YEARS, D/O. PATHUMMAKUNJU, FEMIA MANZIL, APPOLO NAGAR 10, T.K.M.C.(P.O.), CORPORATION 11, HOUSE NO.993, MANGADU VILLAGE, KOLLAM - 691 005. BY ADV SRI.S.SREEKUMAR (KOLLAM)

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THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR FINAL HEARING ON 07.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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F.A.O.No.89 of 2020

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O R D E R

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Ajithkumar, J.

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This is an appeal filed under Order XLIII, Rule 1(d) of the Code of Civil Procedure, 1908. The appellant challenges the order dated 23.11.2019 in I.A.No.606 of 2018 in O.S.No.437 of 2012 of the Principal Sub Court, Kollam.

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The respondent and appellant No.1 are sisters. Appellants Nos. 2 and 3 are the daughter and husband of appellant No.1. The respondent filed O.S.No.437 of 2012 before the Principal Sub Court, Kollam for setting aside a sale deed and injunction alleging that the sale deed was executed by the respondent non est factum. The appellants entered appearance through a counsel in the said case, but did not file any written statement. The suit was referred to the mediation, but not settled. Subsequently, the appellants failed to appear before the court, and therefore, the suit was decreed exparte on 31.01.2017.

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The appellants filed I.A.No.928 of 2017 for setting aside the said exparte decree along with I.A.No.929 of 2017

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F.A.O.No.89 of 2020

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for condonation of delay. The respondent filed objections to the said applications and when the applications were posted on 22.06.2018, the appellants failed to appear before court and as a result, the applications were dismissed. Thereafter, the appellants filed I.A.No.606 of 2018 to restore I.A.No.928 of 2017 and I.A.No.929 of 2017 back on file. The learned Sub

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Judge after hearing both sides, dismissed the said application as per the impugned order.

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Heard the learned counsel for the appellants and

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also the learned counsel appearing for the respondent.

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I.A.No.606 of 2018 was filed requesting to restore

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I.A.No.928 of 2017 and I.A.No.929 of 2017. Those two interlocutory applications were dismissed on 22.06.2018 for default. The order in I.A.No.929 of 2017 reads thus:-

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'Petitioner absent, no representation. This petition is continuously being adjourned for evidence. Inspite of giving specific direction, petitioner did not turn up for evidence. Hence this IA is dismissed.'

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The order in I.A.No.928 of 2017 reads thus:

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'Since IA 929 of 17 is dismissed, this I.A. also stands dismissed.'

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F.A.O.No.89 of 2020

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On 22.06.2018 the appellants did not appear before the court. Their counsel also failed to appear. The learned counsel appearing for the appellants submits that only because of an inadvertent omission on the part of the junior lawyer appearing for the appellants they were not represented on 22.06.2018. The learned Sub Judge did not consider it as a sufficient reason and proceeded to dismiss I.A.No.606 of 2018. When it is contended that there occurred an inadvertent omission on the part of a junior lawyer and that resulted in dismissal of the petitions for default, it requires a lenient approach. A party to a litigation shall not be left to suffer on account of a lapse or fault on the part of his lawyer. We are of the view that the reason set forth for restoration of I.A.No.928 of 2017 and I.A.No.929 of 2017 was sufficient and the learned Sub Judge ought to have allowed I.A.No.606 of 2018 in O.S.No.437 of 2014.

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In the said circumstances, we allow this appeal and the order dated 23.11.2019 in I.A.No.606 of 2018 in O.S.No.437 of 2012 is set aside. I.A.No.928 of 2017 and

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F.A.O.No.89 of 2020

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I.A.No.929 of 2017 in O.S.No.437 of 2012 stand restored on file. The learned Sub Judge will decide the applications in accordance with law. The parties shall appear before the Principal Sub Court, Kollam on 06.01.2022.

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Sd/-

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ANIL K. NARENDRAN, JUDGE

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Sd/-

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P.G. AJITHKUMAR, JUDGE

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dkr

Nazeema Beevi @ Seenath Beevi v. Rasheeda Beevi @ Kunjumol

Case brief

What is this about?

What did the court decide?

Nazeema Beevi @ Seenath Beevi v. Rasheeda Beevi @ Kunjumol

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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