Abdunasar v. Asees

**OP(C).No.1245 OF 2020** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 13TH DAY OF JANUARY 2021 / 23TH POUSHA, 1942** ## **OP(C).No.1245 OF 2020** **AGAINST THE ORDER/JUDGMENT IN OS 33/2016 OF SUB COURT, MANJERI** ## **PETITIONER/REVIEW PETITIONER/PLAINTIFF** **ABDUNASAR, AGED 55 YEARS S/O. MARAKKAR, PACHEERI HOUSE, PERINTHALMANNA P.O. KAKKUTH, MALAPPURAM DISTRICT.** **BY ADV. SRI.K.RAKESH** ## **RESPONDENT/RESPONDENT/DEFENDANT:** **ASEES AGED 56 YEARS S/O. AALI, THOTTOLI HOUSE, PERINTHALMANNA P.O. MALAPPURAM DISTRICT 679 322.** **R1 BY ADV. SRI.PUSHPARAJAN KODOTH R1 BY ADV. SRI.K.JAYESH MOHANKUMAR R1 BY ADV. SMT.VANDANA MENON R1 BY ADV. SRI.VIMAL VIJAY R1 BY ADV. SHRI.RESHMA T.R.** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 13.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(C).No.1245 OF 2020** **2** ## **JUDGMENT** The Original Petition is filed under Article 227 of the Constitution of India to set aside Ext.P5 order passed by the Court of the Subordinate Judge, Manjeri, (Trial Court). 2. The concise case of the petitioner in the original petition is that he is the plaintiff in O.S 33/2016 (Ext.P1), on the file of the Trial Court, filed against the respondent for a decree for return of money to the tune of Rs.65 lakh with interest. 3. The Trial Court by its order dated 13.12.2016 rejected the plaint for non-payment of court fee. The petitioner had filed I.A No.190/2019 (Review Petition No.190/2019) (Ext.P3) to review the judgment and decree dated 13.12.2016 and I.A No.189/2019 (Ext.P2) to condone the delay. 4. The respondent opposed Exts.P2 and P3 applications by filing Ext.P4 written objection. **OP(C).No.1245 OF 2020** **3** 5. The Trial Court by Ext.P5 common order dismissed Exts.P2 and P3. 6. Aggrieved by Ext.P5 common order, the petitioner has approached this Court. 7. The respondent has filed a counter affidavit in the original petition, inter alia, contending that the petitioner ought to have filed an appeal against the order dismissing Ext.P3 application and not a review petition. It was categorically pleaded in Ext.P4 written objection that the petitioner has not stated sufficient cause to condone the delay in filing Ext.P3 review petition. The reason stated for non-payment of court fee is insufficient. The petitioner ought to have sought exemption from payment of court fee, if he was in financial distress. The reason assigned by the petitioner cannot be accepted. The petitioner himself has admitted in Ext.P3, that there is no error apparent on the face of record, which is mandatory requirement to review a judgment. In the absence of such a material averment, the **OP(C).No.1245 OF 2020** **4** application is only to be dismissed. Moreover, the petitioner had not filed an application to condone the delay in filing the review petition. A reading of Ext.P2 would show that the application was only to condone the delay in accepting the court fee. Hence the original petition may be dismissed. 8. Heard Sri.Rakesh.K, the learned counsel appearing for the petitioner and Sri. K.Jayesh Mohankumar appearing for the respondent. 9. The learned counsel appearing for the petitioner argued that the Trial Court below ought to have taken a lenient view in the matter, especially since the petitioner had deposited the balance court fee along with Exts.P2 and P3 applications. Instead, the court has adopted a pedantic approach by dismissing the applications on hyper technical grounds, which is erroneous and unjustifiable. He also contended that the suit is filed for return of a substantial amount of Rs.65 lakh. Therefore, the Trial Court ought to have granted the petitioner an opportunity to **OP(C).No.1245 OF 2020** **5** contest the case on merits, instead of foreclosing the petitioner's right on technicalities/default. 10. The learned counsel appearing for the respondent vehementally opposed the original petition. He contended that the petitioner ought to have filed an application to condone the delay in filing the review petition. A reading of Ext.P2 would establish that the application was filed only to condone the delay in payment of court fee, which is insufficient. Similarly, the petitioner ought to have challenged the original judgment and decree by way of an appeal instead of a review petition. At any rate, there is an inordinate delay of 1098 days in filing the review petition. The applications have been rightly rejected by the Trial Court by Ext.P5 order. There is no circumstance warranting interference by this Court in exercise of the its supervisory jurisdiction. 11. The sole question that emerges for consideration in this original petition is whether Ext.P5 order passed by the **OP(C).No.1245 OF 2020** **6** court below, in rejecting the review petition and the delay petition, is justifiable or not. 12. It is on record that the petitioner had filed Ext.P3 application to review the judgment and decree passed by the Trial Court in rejecting the plaint for non-payment of court fee. The petitioner had contended that he was not in a position to pay the balance court fee due to the demonetization that took place in the country. He sought for enlargement of time to remit the balance court fee, which he paid along with Exts.P3 and P2 applications. Ext.P2 application is seen filed in the review petition on the very same day that Ext.P3 was filed. The application has been filed seeking to condone the delay of 1098 days for payment of the balance court fee. As Ext.P2 has been filed in Ext.P3 application, it is only to be inferred and interpreted that the petitioner had filed the application to condone the delay in filing Ext.P3 review petition. At any rate, the court below, without considering this aspect, **OP(C).No.1245 OF 2020** **7** rejected Exts.P2 and P3 by Ext.P5 order. Therefore, the argument of the learned counsel appearing for the respondent that the court below had to first consider the delay petition before considering the review petition is inconsequential and irrelevant, because the court below had rejected both the applications. 13. The Hon'ble Supreme Court while dealing with applications to condone the delay, in **Collector, Land Acquisition, Anantnag & Anr v. Katiji & Ors [** (1987) 2 SCC 107], held that the expression 'sufficient cause' has to be adequately elastic to enable the courts to apply the law in a meaningful manner which sub-serves the ends of justice, and that a liberal approach has to be adopted while dealing with applications for condonation of delay. 14. The Hon'ble Supreme Court in **Oriental Aroma Chemical Industries Ltd v. Gujarat Industrial Development Corporation and Another [ (** 2010) 5 SCC 459] has reiterated the legal position in **Collector, Land** **OP(C).No.1245 OF 2020** **8** **Acquisition, Anantnag & Anr** (supra) that the Court should adopt a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate. 15. Therefore, it is by now trite that a case has to be decided on merits, after giving the parties an opportunity of being heard, rather than dismissing the same on technicalities or default However, a stricter approach has to be adopted when the delay is inordinate. 16. It was the specific case of the petitioner in Ext.P2 application that he could not remit the balance court fee within the stipulated statutory time limit because his business was affected due to the demonetization. Similarly, he was laid up and was under treatment due to severe back pain. It was in the said circumstances that a delay 1098 days had occurred in filing Ext.P3 review application. 17. The Trial Court, after considering the pleadings and Ext.P4 written objection, by the impugned order, held **OP(C).No.1245 OF 2020** **9** that the petitioner had not produced any material before the Trial Court to substantiate that the petitioner's business was affected due to demonetization and that he was laid up due to back pain. Accordingly, the Trial Court rejected Exts.P2 and P3 applications by Ext.P5. 18. Going by the law laid down in **Collector, Land Acquisition, Anantnag & Anr** and **Oriental Aroma Chemical Industries Ltd (** supra), I am of the considered opinion that even though there is a delay of 1098 days in filing the review petition, the Trial Court ought to have taken a liberal approach and lenient view in matter to subserve the ends of justice, instead of seeking for hairsplitting materials. The hardship and inconvenience caused to the respondent can be compensated by directing the petitioner to pay reasonable costs to tide over such hardship, otherwise severe prejudice and injustice would be caused to the petitioner, who has instituted Ext.P1 for realisation of a substantial amount of Rs.65 lakh. If Ext.P1 is rejected at the **OP(C).No.1245 OF 2020** **10** threshold, due to the default, and not decided on merits, I am of the firm opinion that it would cause severe prejudice and hardship to the petitioner. 19. On an over-all appreciation of the rival pleadings and the law laid down by the Hon'ble Supreme Court and in view of my findings above, I am satisfied that the petitioner has stated sufficient cause to condone the delay of 1098 days in filing Ext.P3 review petition. The petitioner has also pleaded substantial grounds to review the judgment and decree passed by the Trial Court in O.S 33/2016. Moreover, the petitioner has remitted the balance court fee, with Exts.P2 and P3 applications. Therefore, I am of the definite opinion that the petitioner has to be given one more opportunity to contest Ext.P1 suit on its merits. In the result, in exercise of the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, I allow this original petition on the following conditions. **OP(C).No.1245 OF 2020** **11** (i) The petitioners shall deposit/pay an amount of Rs.25,000/- (Rupees Twenty five thousand only) as costs to the respondent/learned counsel appearing for the respondent before this Court, within a period of three weeks from today, and file a memo to the effect along with the judgment before the Trial Court. (ii) If the memo is filed within the prescribed time period, Ext.P5 common order would stand set aside and Exts.P2 and P3 would stand allowed and O.S 33/2016 of the Court of the Subordinate Judge, Manjeri would stand restored. (iii) On restoration of O.S 336/2016, the Trial Court shall give the petitioner and respondent adequate opportunity to adduce and produce evidence, as may be required to prove their respective case. (iv) Considering the fact that the suit is of the year 2016, I direct the Trial Court to dispose of the suit, in accordance with law, as expeditiously as possible. Sd/- **C.S.DIAS, JUDGE** **/True copy/** ma/14.1.2021 **OP(C).No.1245 OF 2020** **12** The direction in Judgment dated 13.01.2021 in O.P (C ) No.1245/2020 to pay cost of Rs.25,000/- (Rupees Twenty Five Thousand Only) to the counsel for the respondent is complied with by the counsel for the petitioner within the stipulated time vide memo dated 29.1.2021 in the OP(C). Sd/- Deputy Registrar **OP(C).No.1245 OF 2020** **13** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S. NO. 33/2016 OF THE SUBORDINATE COURT, MANJERI DATED 1.6.2016.** **EXHIBIT P2 TRUE COPY OF THE INTERLOCUTORY APPLICATION FILED AS I.A. NO. 189/2019 IN O.S. NO. 33/2016 BEFORE THE SUB COURT, MAJERI, DATED 7.2.2019.** **EXHIBIT P3 TRUE COPY OF THE I.A. (REVIEW PETITION) NO. 190/2019 IN O.S. NO. 33/2016 BEFORE THE SUB COURT, MANJERI DATED, 7.2.2019** **EXHIBIT P4 TRUE COPY OF THE OBJECTION FIELD BY THE RESPONDENT TO EXHIBIT P2 AND P3 DATED 22.7.2019.** **EXHIBIT P5 TRUE COPY OF THE COMMON ORDER DATED 10.3.2020 IN I.A. NO. 189/201 AND R.P. NO. 190/2019 IN OS. NO. 33/2016 OF THE SUBORDINATE COURT, MANJERI.**