Kuriakose, M.V. Mathew, Merin and Cochin Granites v. Government of Kerala and Others

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 23[RD] DAY OF NOVEMBER 2022 / 2ND AGRAHAYANA, 1944 ``` ## `OP(C) NO. 4080 OF 2011` ``` IN CMA 8/2011 OF SUB COURT, PERUMBAVOOR ``` ## `PETITIONERS:` ``` 1KURIAKOSE, AGED 51 YEARS, S/O.DAVID,MADAPPALLY HOUSE, PAZHANGANAD KARA,KIZHAKKAMBALAM VILLAGE, ERNAKULAM DISTRICT 2M.V.MATHEW, AGED 51 YEARS, S/O.VARGHESE,MADAPPALLY HOUSE, PAZHANGANAD KARA,KIZHAKKAMBALAM VILLAGE, ERNAKULAM DISTRICT 3MERIN, AGED 40 YEARS, W/O.M.D.KURIAKOSE, MADAPPALLY HOUSE,PAZHANGANAD KARA, KIZHAKKAMBALAM VILLAGE, ERNAKULAM DISTRICT 4COCHIN GRANITES, REG.OFFICE, VENGOLA KARA,VENGOLA VILLAGE, REPRESENTED BY ITS PARTNER, M.D.KURIAKOSE, AGED 51 YEARS,S/O.DAVID, MADAPPALLY HOUSE, PAZHANGANAD KARA, KIZHAKKAMBALAM VILLAGE, ERNAKULAM DISTRICT. BY ADV SRI.G.RAJAGOPAL ``` ## `RESPONDENTS:` ``` 1GOVERNMENT OF KERALA, REPRESENTED BY ERNAKULAM DISTRICT COLLECTOR, CIVIL STATION,KAKKANAD,ERNAKULAM DISTRICT 2TAHSILDAR KUNNATHUNADU TALUK, PERUMBAVOOR,ERNAKULAM DISTRICT PIN 683 542 ``` ``` O.P.(C)No.4080/2011 ``` ``` -:2:- ``` ``` 3VILLAGE OFFICER VENGOLA VILLAGE, VENGOLA P.O, ERNAKULAM DISTRICT PIN 683554 ``` - `4 VENGOLA GRAMA PANCHAYATH REPRESENTED BY SECRETARY, VENGOLA, ERNAKULAM DISTRICT PIN 683554` ``` BY ADVS.SRI.C.A.NAVAS SRI.T.K.SASIKUMAR SMT.C.S.SIMI SMT. S.L. SYLAJA, GOVERNMENT PLEADER ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` O.P.(C)No.4080/2011 ``` ``` -:3:- ``` Dated this the 23[rd] day of November, 2022 ## **J U D G M E N T** Aggrieved by Ext P4 common order dated 17.01.2011 in I.A.Nos.626/2010 & 627/2010 in O.S.No.365/2004 passed by the Court of the Munsiff, Perumbavoor (Trial Court `)` and Ext P5 order dated 03.09.2021 in C.M.A.No.8/2011 passed by the Court of the Subordinate Judge, Perumbavoor(Appellate Court), the plaintiffs in the suit have filed the original petition. The defendants in the suit are the respondents in the original petition. 2. The antecedent facts leading to Exts P4 and P5 orders, in a nutshell, are: the petitioners had filed the suit against the respondents for a decree of permanent prohibitory injunction and other ancillary reliefs. The suit was listed for trial on 16.09.2009. The fact was intimated to the office of the fourth petitioner ``` O.P.(C)No.4080/2011 ``` ``` -:4:- ``` by the counsel over telephone. Unfortunately, the telephone was attended by an employee, who was a native of Orissa. He did not understand what was communicated and in turn did not inform the petitioners. The petitioners were unaware of the listing of the case. The suit was dismissed for default on 16.09.2009. Only on 22.03.2010, when the first petitioner went to the office of the counsel that he learnt about the dismissal of the suit. Immediately, the petitioners filed I.A.No.626/2010 (Ext P2) and I.A.No.627/2010(Ext P3), to restore the suit and to condone the delay of 178 days in fling Ext P2 application, respectively. The Trial Court, by the impugned Ext P4 order, dismissed Exts P2 and P3 applications. Even though the petitioners challenged Ext P4 common order in C.M.A.No.8/2011, the Appellate Court, by the impugned Ext P5 order, ``` O.P.(C)No.4080/2011 ``` ``` -:5:- ``` dismissed the appeal. Exts P4 and P5 are erroneous and unsustainable in law. Hence, the original petition. 3. Heard; Sri. G.Rajagopal, the learned counsel appearing for the petitioners and the learned Government Pleader appearing for the respondents 1 to 3. Service is complete on the fourth respondent. 4. The question is whether there is any error or illegality in Exts P4 and P5 orders?. 5. The petitioners’ case is that although their counsel had informed their employee regarding the listing of the suit on 16.09.2009, the employee a native of Orissa, did not understand what was told and in turn did not inform to the petitioners. Thus, they were unaware of the listing of the suit. Consequentially, the suit was dismissed for default. Only when the first petitioner went to the office of the counsel he learnt of ``` O.P.(C)No.4080/2011 ``` ``` -:6:- ``` the dismissal of the suit. Immediately, he filed Exts P2 and P3 applications, to restore the suit and to condone the delay of 178 days in filing the restoration application. Nonetheless, the Trial Court by Ext P4 order, dismissed the applications on the ground that the reasons stated by the petitioners were insufficient to condone the delay of 178 days. 6. The Appellate Court, by the impugned Ext P5 order, upheld Ext P4 order of the Trial Court. 7. In **Robin Thapa v. Rohit Dora** [2019 KHC 6641], the Hon'ble Supreme Court has held that, ordinarily a litigation is based on adjudication on the merit of the contention of the parties and litigation may not be terminated by default of either the plaintiff or the defendant. The cause of justice does require that, as far as possible, adjudication be done on merits. 8. In **G.P.Srivastavav.R.K.Raizada & Others** ``` O.P.(C)No.4080/2011 ``` ``` -:7:- ``` [2000 KHC 1023] the Hon'ble Supreme Court has held that the crucial aspect to be considered in an application filed under Order IX of the Code of Civil Procedure (Code) is whether the party has made out 'sufficient cause' for his nonappearance on the date the case was posted. The court is not bound to look into the antecedents of the party. 9. Thus, the law is well settled that the suit is to be decided on its merits rather than on default. 10. The petitioners’ contention is that they were unaware of the listing of the suit for trial. They have given a cogent explanation that even though their counsel informed the matter to one of their employees, he did not communicate the same to them. 11. I do not find any reason to disbelieve the explanation put forth by the petitioners. I hold that the explanation put forth by the petitioners is sufficient to ``` O.P.(C)No.4080/2011 ``` ``` -:8:- ``` condone the delay in filing the restoration application. In order to do complete justice to both sides, I am of the view that a quietus can be given to the litigation by directing the Trial Court to consider and dispose of the suit within a time frame. 12. On a comprehensive reconsideration of the pleadings and materials on record, the law laid down in the aforecited decisions and in view of the findings rendered above, I am inclined to exercise of its power of superintendence of this Court under Article 227 of the Constitution of India and set aside the impugned orders In the result, the original petition is allowed in the following manner: - (i) Ext P4 common order passed in I.A.Nos. 626/2010 & 627/2010 in O.S.No.365/2004 of the Trial Court is set aside. - (ii) Ext P5 order passed by the Appellate Court in ``` O.P.(C)No.4080/2011 ``` ``` -:9:- ``` ## C.M.A.No.8/2011 is set aside. - (iii) Ext P2 application is allowed. - (iv) O.S.No.365/2004 is restored back to file. - (v) The parties are directed to appear before the Trial Court on 12.12.2022. - (vi) As the suit is of the year 2004, the Trial Court shall make every endeavour to consider and dispose of the suit in accordance with law, as expeditiously as possible. Sd/- ## **C.S.DIAS,JUDGE** DST/23.11.22 //True copy/ P.A.To Judge ``` O.P.(C)No.4080/2011 ``` ``` -:10:- ``` ## `APPENDIX` - `PETITIONER EXHIBITS EXHIBIT P1` ``` TRUE PHOTOCOPY OF THE PLAINT IN O.S.NO.365 OF 2004 ON THE FILES OF THE MUNSIFF'S COURT, PERUMBAVOOR. ``` ``` EXHIBIT P2TRUE PHOTOCOPY OF THE RESTORATION APPLICATION NUMBERED AS I.A.NO.626 OF 2010 IN O.S.NO.365 OF 2004 ON THE FILE OF THE MUNSIFF'S COURT, PERUMBAVOOR. ``` ``` EXHIBIT P3TRUE PHOTOCOPY OF I.A.NO.627 OF 2010 IN O.S.NO.365 OF 2004 ON THE FILE OF THE MUNSIFF'S COURT, PERUMBAVOOR TO CONDONE THE DELAY IN FILING RESTORATION APPLICATION. ``` ``` EXHIBIT P4TRUE PHOTOCOPY OF THE ORDER DATED 17.1.2011 IN I.A.627/10 IN O.S.365 OF 2004 ON THE FILES OF THE MUNSIFF'S COURT, PERUMBAVOOR. ``` ``` EXHIBIT P5TRUE PHOTOCOPY OF THE ORDER DATED 3.9.2011 IN C.M.A.NO.8 OF 2011 ON THE FILES OF THE SUBORDINATE JUDGES COURT, PERUMBAVOOR. ```