Allowed

M.a.Shaik Hussain v. M.Muhammed Jamal

Kerala HC5 Oct 2021OP(C)/725/2021

Case brief

AI extract

What is this about?

In this original civil petition, the High Court of Kerala restored a suit dismissed for default despite no appearance by the petitioner. Relying on Robin Thapa v. Rohit Dora, the court held that a clerical error by the petitioner's counsel should not result in default dismissal, ordering the trial court to decide merits within six months upon payment of compensation.

What did the court decide?

The original petition allowed; impugned order set aside; O.S.No.3 of 2016 restored to Subordinate Judge's files subject to payment of ₹20,000 compensation.

M.a.Shaik Hussain Vs M.Muhammed Jamal — Specific Performance | Kerala HC (2021)

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OP(C).725/21

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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 V.G.ARUN

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TUESDAY, THE 5^TH DAY OF OCTOBER 2021 / 13TH ASWINA, 1943

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OP(C) NO. 725 OF 2021

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AGAINST THE ORDER/JUDGMENT IN OS 3/2016 OF II ADDITIONAL SUB COURT,ERNAKULAM, ERNAKULAM

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PETITIONER/S:

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M.A.SHAIK HUSSAIN AGED 57 YEARS S/O ABDUL AZEEZ, VELLAKKADA PARAMBIL, 48/719, KOUSALLIYA NAGAR, ELAMAKKARA P.O, ERNAKULAM

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BY ADV T.M.ABDUL LATHEEF

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RESPONDENT/S:

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M.MUHAMMED JAMAL AGED 61 YEARS S/O MALAKK RAWTHER, CC35/499, MUKKARAYIL HOUSE, PALARIVATTOM P.O, ERNAKULAM-682025.

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

OP(C).725/21

V.G.ARUN, J.

O.P(C).No. 725 of 2021

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Dated this the 5^th day of October, 2021

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JUDGMENT

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The petitioner was the plaintiff in O.S.No.3 of 2016 of the Subordinate Judge’s Court, Ernakulam. The suit was originally filed for mandatory injunction, directing the respondent to execute a sale deed in respect of the plaint schedule property after receiving the balance sale consideration. The plaint was later amended by incorporating an alternative prayer to allow the petitioner to recover the amount of Rs.15 lakhs paid towards advance sale consideration. On 19.9.2018, the suit was posted for hearing on a preliminary issue. Since there was no representation for the plaintiff, the suit was dismissed for default. The petitioner filed I.A.No.3882 of 2018 for restoring the suit, but that application was dismissed on 20.8.2019 for non-representation. Thereupon, the petitioner filed I.A.No.1373 of 2019 for restoring I.A.No.3882 of 2018 along with I.A.No.1374 of 2019 for condoning the delay in filing the restoration application. Those applications were dismissed for failure to take steps for issuance of notice to the respondent. Undaunted, the petitioner filed I.A.No.2974 of 2019 for

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OP(C).725/21

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restoring the earlier interlocutory applications. The trial court dismissed that application upon which the petitioner filed I.A.No.3218 of 2019, which was dismissed by Exhibit P4 order. Hence, this original petition.

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Learned counsel for the petitioner submitted that the suit happened to be dismissed for default due to a bona fide mistake in noting the posting date. The same mistake occurred in noting the dates on which the restoration petitions were posted. It is submitted that the mistake is not attributable to the party and had occurred due to the lack of experience of a junior Clerk attached to the counsel’s office. It is contended that the filing of repeated applications for restoration itself is proof of the serious manner in which the petitioner is prosecuting the case. On the merits of the suit it is submitted that, having advanced an amount of Rs.15 lakhs to the respondent, the petitioner will be put to undue prejudice and loss if the suit is not restored to file and decided on merits. Reliance is placed on the decision of the Honourable Supreme Court in Robin Thapa v. Rohit Dora [(2019) 7 SCC 359] to contend that ordinarily no litigation should be terminated by default.

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Despite service of notice, there is no appearance for the respondent.

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The sequence of events, commencing from the dismissal of the suit for default and culminating in the impugned order, reflects the

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OP(C).725/21

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indifferent manner in which the suit was being contested. The learned Counsel fairly admitted that the mistake had occurred at his office and is not attributable to the party. The relief sought in the suit is for specific performance of an agreement or in the alternative, to direct return of the advance amount of Rs.15 lakhs. The question is whether the petitioner should be non-suited for reasons which are not attributable to him. In this context, the following paragraph in Robin Thapa (supra) assumes relevance.

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“8. Ordinarily, a litigation is based on adjudication on the merits of the contentions of the parties. Litigation should not be terminated by default, either of the plaintiff or the defendant. The cause of justice does require that as far as possible, adjudication be done on merits.”

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in the light of the dictum laid down in Robin Thapa (supra), I am inclined to allow the prayer for restoration of the suit, subject to payment of compensation to the respondent.

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In the result, the original petition is allowed. Exhibit P4 order is set aside. O.S.No.3 of 2016 is restored to the files of the Subordinate Judge’s Court, Ernakulam subject to the petitioner remitting an amount of Rs.20,000/- (rupees twenty thousand only) towards cost before the trial court within one month. The amount deposited towards compensation shall be disbursed to the respondent, on submission of

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OP(C).725/21

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appropriate application. The court below shall take earnest efforts to dispose of the suit within six months of appearance of the respondent. The interim order restraining alienation of the property shall continue to be in force till disposal of the suit.

Sd/-

V.G.ARUN, JUDGE

vgs

OP(C).725/21

APPENDIX OF OP(C) 725/2021

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PETITIONER EXHIBITS

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EXHIBIT P1 TRUE COPY OF THE PLAINT DATED 7/12/2015 BEFORE THE SUB COURT ERNAKULAM. EXHIBIT P2 TRUE COPY OF THE I.A.NO.1989/2018 DATED 5/6/2018 BEFORE THE SUB COURT ERNAKULAM. EXHIBIT P3 TRUE COPY OF ORDER IN I.A.NO.2974/2019 IN THE COURT OF 2ND ADDITIONAL SUB JUDGE ERNAKULAM DATED 3/10/2019. EXHIBIT P4 TRUE COPY OF ORDER IN I.A.NO.3218/2019 IN THE COURT OF 2ND ADDITIONAL SUB JUDGE ERNAKULAM DATED 22/01/2021.

M.a.Shaik Hussain v. M.Muhammed Jamal

Case brief

What is this about?

What did the court decide?

M.a.Shaik Hussain v. M.Muhammed Jamal

Case brief

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What did the court decide?

What the court decided

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