Ananda Kumar v. Mohanan

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **WEDNESDAY, THE 30TH DAY OF OCTOBER 2019 / 8TH KARTHIKA, 1941** ## **OP(C).No.2537 OF 2018** **AGAINST THE ORDER/JUDGMENT IN OS 31/2015 OF SUB COURT, NEDUMANGAD** ## **PETITIONER/PLAINTIFF:** **ANANDA KUMAR, AGED 55 YEARS, S/O SOMAN NAIR, LATHA BHAVAN, THOTTUVILAKOM, MELAMCODE, KARIPOOR VILLAGE, NEDUMANGADU TALUK, THIRUVANANTHAPURAM - 695541** **BY ADVS. SRI.R.T.PRADEEP SMT.M.BINDUDAS SRI.K.C.HARISH** ## **RESPONDENT/DEFENDANT:** **MOHANAN, S/O MAHARAJA PILLAI, MANIKANTA VILASOM, PAZHAKUTTY, NAGARIKUNNU, NEDUMANGAD VILLAGE, THEKKUMKARA MURI, THIRUVANANTHAPURAM - 695541** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 10-10-2019, THE COURT ON 30-10-2019 DELIVERED THE FOLLOWING:** _OP(C) No.2537 of 2018_ 2 ## **JUDGMENT** **Dated this the 30th day of October 2019** Petition filed under Article 227 of the Constitution. 2. An interesting question that arises for consideration in this petition is whether a suit dismissed as not pressed could be restored to file. 3. The petitioner is the plaintiff in O.S.No.31/2015 on the file of the Sub Court, Nedumangad. Ext.P1 is the plaint in the suit filed by him for realisation of Rs.25 lakhs based on promissory note from the respondent. The petitioner had earlier filed a suit as O.S.No.494/2015 before the Munsiff's Court, Nedumangad for realisation of Rs.10 lakhs from the very same respondent, based on a cheque transaction. Both the suits were filed through his Counsel, Advocate B.Varijakshan. The suit before the Munsiff's Court was decreed uncontested vide Ext.P5 judgment. In O.S.No.31/2015 also, the defendant did not contest and filed Ext.P2 written statement admitting the claim. The petitioner had entrusted blank signed papers to his Counsel for the purpose of filing _OP(C) No.2537 of 2018_ 3 execution petition before the Munsiff's Court. The petitioner had also entrusted Rs.2.5 lakhs to his Counsel towards Advocate's fees. He kept inquiring about the status of the suit pending before the Sub Court. His Counsel, however, kept him in the dark regarding the status of the suit pending before the Sub Court. 4. Later, when the petitioner made enquiry regarding the suit through an Advocate clerk, he came to know that the suit has been dismissed as not pressed. Consequent to the filing of Ext.P3 memo purportedly signed by him and his Counsel informing the Court that the matter has been settled out of Court. In fact, the petitioner did not get any amount from the respondent towards settlement of the suit. Ext.P4 judgment was pronounced by the Court on 15.12.2017, dismissing the suit on the basis of Ext.P3 memo. 5. Realising the fraud played upon him by his Counsel Advocate Varijakshan, he questioned him. The Counsel returned a part of his money paid towards Court fee and Advocate's fees. However, the petitioner did _OP(C) No.2537 of 2018_ 4 not get any money from the respondent. Aggrieved, the petitioner lodged a complaint as Ext.P6 against his Counsel before the Bar Council of Kerala and also filed Ext.P10 complaint before the Judicial Magistrate Court, Nedumangad. Advocate Varijakshan submitted his remarks before the Bar Council of Kerala as Ext.P7, which was communicated to the petitioner vide Ext.P8, and the petitioner filed Ext.P9 rejoinder. 6. The petitioner contends that Ext.P4 judgment dismissing his suit is vitiated by material irregularity and illegality. In view of the mentioning of compromise between the parties in Ext.P3 memo, the suit should not have been dismissed as not pressed, and instead, a written compromise signed by both parties as contemplated under Order 23, Rule 3, C.P.C. should have been insisted upon. 7. It is also stated by the injustice done to the petitioner due to the dismissal of the suit based on Ext.P4 vitiated by fraud has to be undone by restoring the suit to the files of the Sub Court. _OP(C) No.2537 of 2018_ 5 8. The respondent was served with notice, but he did not appear to contest the petition. Ext.P2 written statement filed by the respondent in O.S.No.31/2015 before the Sub Court indicates that the respondent has no intention to contest the suit. That apart, in Ext.P7 remarks submitted by the petitioner's Counsel in answer to Ext.P6 complaint filed by the petitioner against him, he has stated that the respondent is ready and willing to give the amount as per the compromise even now. 9. This is a case where the plaintiff withdrew/ abandoned his suit under Sub-rule (1) of Rule 1 of Order 23, C.P.C. vide Ext.P3 memo stating that the dispute has been settled between parties. The so called dismissal of the suit as not pressed by the Trial Court was not really a dismissal, but a mere recording of the fact of withdrawal. It determined none of the matters in controversy in the suit, there was no claim by the defendant to be determined and is not a decree as defined by Section 2(2) of the Code. It stands on the same footing as a dismissal under Rule 8 of Order 9, _OP(C) No.2537 of 2018_ 6 which, because the word, "dismissal" implying a determination on the merits is used by the rule, is expressly excluded from the definition in Section 2(2) by Clause (b) of the exclusions therein. It is the provision in Sub-rule (3) of Rule 1 of Order 23 (Like that in Rule 9 of Order 9) and not any principle of _res judicata_ that precludes the plaintiff in such a case from bringing a fresh suit in respect of the same matter. It follows that there being no decree, no appeal lies under Section 96 of the Code. Reference has been made in the decision _**Devasi @ J D Mooken v. Anthoni, 1968 KLT 578: AIR 1969 Ker.78**_ by this High Court in connection to _**Kulandai v. Indram Ramaswami AIR 1928 Mad. 416 at 418, Saraswati Bala v. Surabala Dassi AIR 1957 Calcutta 57 and Paisa Sultana v. Abdul Qadir**_ ## _**AIR 1966 Allahabad 318 at 320**_ . 10. Section 58 of the Indian Evidence Act reads thus: _"No fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings:_ _Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions."_ _OP(C) No.2537 of 2018_ 7 In _**Abdul Azeez v. Nedungadi Bank, 2017(2) KHC 389: 2017(2) KLT 41 FB**_ , a Full Bench of this Court considering the scope of Section 58 of the Evidence Act held thus: _“32. When one party admits a fact pleaded by the other party, the rule of evidence contained in S.58 dispenses with proof of that fact which the latter is otherwise required to prove before he can be granted the relief prayed for against the former. This type of admission is called judicial admission and it is not required to be proved as the maker waives its proof. It is conclusive unlike evidentiary admission. It is judicial admission that is referred to in Order XII Rule 6 subrule 1 C.P.C. The opening words of the sub-rule are relevant: "Where admissions of fact have been made either in the pleading or otherwise." 'Or otherwise' only indicates that even after the filing of the pleadings a party may admit the facts pleaded by the opposite side.”_ The Full Bench further observes thus: _“35. Admission is a unilateral act while compromise is a bilateral act. An admission made by a defendant should always result in a decree in favour of the plaintiff (unless there is a legal impediment) while a compromise need not. Like admission abandonment of a suit also is a unilateral act, the result of which is dismissal of the suit.”_ 11. The circumstances in this case put together, indicates that the amount due to the petitioner vide Ext.P1 suit was never paid to him. The recital in Ext.P3 memo stating that the matter has been compromised between the parties out of Court does not appear to be true. In view of admission in the written _OP(C) No.2537 of 2018_ 8 statement, no issues would arise in the suit for determination by the Court. The suit ought to have been decreed based on the admission in the written statement. The filing of Ext.P3 memo not pressing the suit is therefore superfluous and unnecessary. The suit could not have been dismissed under the circumstances. 12. Whenever there is a miscarriage of justice, a civil Court has authority to set it right by invoking the inherent jurisdiction available to the Court under Section 151 of the C.P.C. Similar power is also vested in this Court by exercising the supervisory jurisdiction under Article 227 of the Constitution. The Original Petition is allowed and Ext.P4 judgment of the Sub Court, Nedumangad dated 15.12.2017 is hereby set aside, O.S.No.31/2015 is directed to be taken back to the file of that Court and dispose the same in accordance with law, as expeditiously as possible. ## **Sd/-** ## **ASHOK MENON** _dkr_ **JUDGE** _OP(C) No.2537 of 2018_ 9 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 COPY OF PLAINT DATED 15.10.2016 IN O.S.NO.31/2015 BEFORE SUB COURT, NEDUMANGAD. EXHIBIT P2 COPY OF WRITTEN STATEMENT DATED 7.6.2016 IN OS NO.31/2015 BEFORE THE SUB COURT, NEDUMANGAD. EXHIBIT P3 COPY OF THE MEMO NIL DATED IN OS NO.31/2015 BEFORE THE SUB COURT, NEDUMANGAD. EXHIBIT P4 COPY OF JUDGMENT DATED 15.12.2017 IN OS NO.31/2015 BY THE COURT OF SUB JUDGE, NEDUMANGAD. EXHIBIT P5 COPY OF JUDGMENT DATED 28.6.2017 IN O.S.NO.494/2015 BY THE COURT OF ADDL. MUNSIFF, NEDUMANGAD. EXHIBIT P6 COPY OF C.P.NO.77/2018 DATED 27.7.2018 BEFORE BAR COUNCIL OF KERALA. EXHIBIT P7 COPY OF REMARKS FILED BY THE COUNSEL DATED 23.8.2018 BEFORE BAR COUNCIL OF KERALA. EXHIBIT P8 COPY OF COMMUNICATION DATED 31.8.2018 FROM BAR COUNCIL AS REGARD FILING OF REMARKS BY THE COUNSEL AND GIVING AN OPPORTUNITY TO FILE A REJOINDER BY THE PETITIONER. EXHIBIT P9 COPY OF REJOINDER DATED 17.9.2018 FILED BY THE PETITIONR IN CP NO.77/2018. EXHIBIT P10 COPY OF C.M.P.NO.7828/2018 DATED 15.9.2018 BEFORE J.F.C.M-II,NEDUMANGAD.**