Chandrasekharan v. Jose and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN** **WEDNESDAY, THE 19TH NOVEMBER 2008 / 28TH KARTHIKA 1930** **CRP.No.766 of 2008** **-----------------------** **AGAINST THE ORDER DATED 22/08/2008 IN IA.1528/2008 IN OS.262/2000 of ADDL.SUB COURT, PALAKKAD** **....................** ## **PETITIONER: SUPPL.2ND RESPONDENT/2ND DEFENDANT:** **--------------------------------------------------------------------** **CHANDRASEKHARAN, S/O.RAMASWAMY (LATE), AGED 60 YEARS, 15/513 C1- KUNNATHURMEDU, STADIUM ROAD, PALAKKAD, NOW RESIDING AT 17/432(7) PANDARAKAVU, MANAPPULLYKAVU, PALAKKAD-13.** **BY ADV. SRI.RAJESH SIVARAMANKUTTY SMT.A.PREMAKUMARI** ## **RESPONDENTS/PETITIONER/PLAINTIFF/SUPPL.RESPONDENT & DEFENDANTS** **----------------------------------------------------------------------------** **1. JOSE, S/O.MATHUNNI, AGED 56 YEARS, POOVATHINGAL HOUSE, PALAYAPETTI, KUNNATHURMEDU, PALAKKAD.** **2. JANAKI, W/O.RAMASWAMY (LATE), 17/432(7), PANDARAKAVU, MANAPPULLYKAVU, PALAKKAD-13.** **3. CHITHRALEKHA, D/O.RAMASWAMY, 35/547 (NEW 49/105), JAINIMEDU, VADAKKANTHARA P.O., PALAKKAD-12.** **4. SUDHA, D/O.RAMASWAMY, 35/547 (NEW 49/105), JAINIMEDU, VADAKKANTHARA P.O., PALAKKAD-12.** **5. SATHYAVATHY, D/O.RAMASWAMY, SUKKRAM NIVAS, VELLAMTHARA, BEHIND POLICE STATION, KOLLENGODE, CHITTUR TALUK, PALAKKAD DISTRICT.** **CRP.No.766 of 2008** -2- **6. PRABHAVATHY, D/O.RAMASWAMY,** - **35/547 (NEW 49/105), JAINIMEDU, VADAKKANTHARA P.O., PALAKKAD-12.** **7. JAYALAKSHMY, D/O.RAMASWAMY,** - **35/547 (NEW 49/105), JAINIMEDU, VADAKKANTHARA P.O., PALAKKAD-12.** **8. JNAMBAL, W/O.SAKTHIVEL,** - **35/547 (NEW 49/105), JAINIMEDU, VADAKKANTHARA P.O., PALAKKAD-12.** **9. MANIMEKHALA, D/O.SAKTHIVEL,** - **35/547 (NEW 49/105), JAINIMEDU, VADAKKANTHARA P.O., PALAKKAD-12.** **THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## K.P.BALACHANDRAN, J. -----------------------------------------------C. R. P. No.766 of 2008 -----------------------------------------------Dated this the 19[th] day of November, 2008 ## **ORDER** Heard the counsel for the petitioner. The petitioner is the second defendant in O.S.262/2000 on the file of the Sub Court, Palakkad. The suit was instituted by the plaintiff against the original defendant for specific performance of an agreement to sell the scheduled property to him. Pending suit the original sole defendant died and his L.Rs were impleaded as supplemental defendants 2 onwards. When the suit came up for trial in the list, on the instructions of the plaintiff his counsel submitted before court that the suit is not pressed and accordingly, the suit was dismissed. Subsequently, I.A.1528/08 was filed by the plaintiff for restoration of the suit and that was opposed by the additional third defendant. The court below considered C. R. P. No.766 of 2008 -2- the matter and passed the impugned order allowing I.A.1528/08 and setting aside the order dismissing the suit, restored the suit to file. It is the said order that is assailed in this C.R.P. 2. It is contended before me by the learned counsel for the petitioner that the reasons stated by the court below accepting the case of the respondents is incorrect. The reasons stated by the petitioner/plaintiff for restoration was that the suit filed by him is one for specific performance of contract under which he has paid an amount of Rs.1,65,000/to the first defendant by way of advance; that his son has filed a suit before the same court as O.S.158/06 and he was conducting that suit also on behalf of his son; that the said suit stood posted to 19/06/08 and his counsel has intimated that the above suit was included in the special list and posted to 25/05/08 for -3- C. R. P. No.766 of 2008 trial; that the petitioner/plaintiff had given instructions to his counsel not to prosecute that suit and it was consequently that the petitioner's counsel made an endorsement to the effect that the suit is not pressed and the suit was dismissed, but that the instruction given to the counsel in fact was that O.S.158/06 is not pressed as that was settled between the parties and that it was by a mistake that O.S.262/2000 was reported as not pressed and that the dispute involved in O.S.262/2000 is still subsisting and that therefore, the order dismissing the suit as not pressed be recalled and the suit be restored. The contentions raised by the additional third defendant was that there is no provision in the statute to recall an order passed by the court that it is incorrect to state that it was mistakenly that instruction was given not to press the suit; that himself C. R. P. No.766 of 2008 -4- and the fourth defendant has paid to the petitioner/plaintiff an amount of Rs.20,000/and a promissory note was executed for the balance amount of advance and it was because the suit was settled accordingly that the plaintiff instructed not to press the suit. Though the contentions were raised by the petitioner in the C.R.P to the above effect, petitioners had not produced an iota of evidence to establish that Rs.20,000/- had been paid. It is too much to believe that without any record an amount of Rs.20,000/will be paid by them to the plaintiff. Further, promissory note stated to have been executed in favour of one Antony who is a relative of the plaintiff is not caused to be produced. Antony is not cited as a witness. It is not stated also in the objection as to for what amount was the promissory note executed in favour of Antony to enable the court to C. R. P. No.766 of 2008 -5- consider as to whether that was in settlement of the claim involved in the suit O.S.262/2000. 3. The next question is regarding the authority of the court to set aside an order dismissing a suit recording the submission of the counsel for the petitioner that the suit is not pressed. When the court is satisfied that a counsel has made a bona fide mistake in making a submission and on the basis of that the court also committed a mistake by dismissing a suit for specific performance wherein huge stakes are involved, it cannot be said that the court is powerless to redress the grievance. To hold otherwise would be to perpetrate illegality and to do benefit to a undeserving litigant. The court below has also relied on the decision of the Apex Court in _Jet Ply Wood (P) Ltd. v. Madhukar Nowlakha (2006(2) KLT 624 SC)_ which held that a petition for recalling an C. R. P. No.766 of 2008 -6- order permitting withdrawal of a suit can be filed invoking the inherent jurisdiction of Civil Court under Section 151 of the C.P.C. The trial court on a consideration of the contention has found that it is a fit case where allowing I.A.1528/08 the dismissal order has to be set aside and the suit has to be restored to file. There is no infirmity at all in the said order. Hence, confirming the said order, I dismiss this C.R.P. without however, prejudice to the contentions of the petitioner/third defendant being raised in the suit filing an additional written statement, if so advised. K.P.BALACHANDRAN, JUDGE kns/-