Mahendranath v. Abdul Kareem

1 ``` OP(C) NO. 1865 OF 2017 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 9[TH] DAY OF JUNE 2022 / 19TH JYAISHTA, 1944 OP(C) NO. 1865 OF 2017`** ``` IN OS 916/2011 OF I ADDITIONAL SUB COURT,TRIVANDRUM ``` ``` PETITIONER: ``` ``` MAHENDRANATH, S/O.KOLAPPAN PILLAI, AGED 46 YEARS, AISWARYA SILPAM, PUDUMANA LANE, NEDUMKAD, KARAMANA, THIRUVANANTHAPURAM. ``` ## **`BY ADV R.ANANTHAPADMANABAN`** ``` RESPONDENT: ``` ``` ABDUL KAREEM, S/O.MEERAN PILLAI, KUZHIVILAKKATH PUTHEN VEEDU, VELLAYANI JUNCTION, NEMOM P.O., THIRUVANANTHAPURAM-695020. ``` ``` BY ADVS.SRI.K.BAIJU (KALLAMBALAM) SRI.A.CHANDRA BABU SMT.S.V.HARITHA SRI.R.SANTHOSH VARKALA SRI.C.R.VIJAYAKUMARAN PILLAI ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 09.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 ``` OP(C) NO. 1865 OF 2017 ``` ## **“CR”** _Dated this the 9[th] day of June,2022_ ## **J U D G M E N T** The original petition is filed to set aside Ext P7 order passed in I.A.No.4278/2016 in O.S.No.916/2011 of the Court of the Additional Subordinate Judge - I, Thiruvananthapuram. 2. The petitioner is the plaintiff in the above suit filed against the respondent for a decree for specific performance. The suit was dismissed for default on 30.07.2015. The petitioner had filed Exts.P2 and P3 applications to restore the suit and to condone the delay in filing Ext.P2. The Court of the Additional Subordinate Judge – II, Thiruvananthapuram, by Ext.P4 order restored the suit. The parties were referred for mediation, and their disputes were settled as per Ext.P5 mediation report. Hence the petitioner is entitled to get refund of the entire court fee of Rs.3,30,400/-. By an inadvertent mistake, Exts.P2 and P3 applications were filed and Ext.P4 order 3 ``` OP(C) NO. 1865 OF 2017 ``` was passed by the II[nd] Additional Subordinate Judge instead of the I[st] Additional Subordinate Judge. Therefore, the petitioner filed Ext.P6 application before the I[st] Additional Subordinate Judge’s Court to accept the mediation report, decree the suit and order the refund of the court fee. But, the I[st] Additional Subordinate Judge, by the impugned Ext.P7 order, dismissed Ext.P6 application holding that as Exts.P2 and P3 applications were filed before a wrong court, Ext.P4 order is non-est and, therefore, the mediation report cannot be accepted, and the suit cannot be decreed. Ext P7 is patently wrong and erroneous. Hence, the original petition. 3. Heard; Sri. K. Mohanakannan, the learned counsel appearing for the petitioner. Even though notice was served on the respondent, there is no appearance for him. 4. The question that emanates for consideration in the original petition is whether there is any irregularity in Ext.P7 order?. 4 ``` OP(C) NO. 1865 OF 2017 ``` 5. O.S.No.916/2011 was instituted before the Subordinate Judge’s Court, Thiruvananthapuram. The case was made over, on the administrative side, to the Court of I[st] Additional Subordinate Judge. The suit was dismissed for default. The petitioner had filed Exts.P2 and P3 applications to restore the suit and condone the delay in filing Ext.P.2. The applications were presented before the Chief Ministerial Officer of the Subordinate Judge’s Court, Thiruvananthapuram, which is common to all the Subordinate Judge’s Courts in the District. The applications were posted, called and allowed by the II[nd] Additional Subordinate Judge. Thereafter, the same Judge referred the parties to mediation, and the disputes were settled as per Ext.P5 mediation report. When Ext.P5 report was sent to the Court to pass the decree, the mistake was noticed. Immediately,the petitioner filed Ext.P6 application to accept the report, decree the suit and order the refund of the court fee. But the court below by the impugned order has held that Ext.P4 restoration order was passed by 5 ``` OP(C) NO. 1865 OF 2017 ``` a court having no jurisdiction. I find proceedings leading to Ext.P7 order to be vitiated by material irregularity for the following reasons: (i) The Chief Ministerial Officer ought to have verified the suit register, found out to which court the suit was originally made over, and then posted the applications before the concerned court. (ii) The II[nd] Additional Subordinate Judge should have called for the back records in the suit, verified the order sheet and then decided Exts. P2 and P3 applications. (iii) The II[nd] Additional Subordinate Judge ought to have referred the parties to mediation after passing the reference order on the order sheet in the restored suit, and, (iv) The I[st] Additional Subordinate Judge, on being pointed out the mistake, should have either accepted the mediation report and decreed the suit or reconsidered the matter afresh, instead of leaving the petitioner in the lurch and remediless. 6. For the above reasons, I hold that the findings in Ext.P7 order are erroneous and unsustainable in law 6 ``` OP(C) NO. 1865 OF 2017 ``` because the mistake was committed by the court below. The said mistake cannot prejudice the petitioner in the light of the well-known maxim ‘Actus Curia Neminem Gravabit,’ which means an act of the Court shall prejudice no one. 7. In _**Shaikh Salim Haji Abdul Khaysumsab v. Kumar and Others**_ [(2006) 1 SCC 46], the Hon’ble Supreme Court has opined as follows: _“20. In the facts and circumstances of the case, the maxim of equity, namely, actus curiae neminem gravabit, an act of court shall prejudice no man, shall be applicable. This maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of law. The other maxim is, lex non cogit ad impossibilia, the law does not compel a man to do what he cannot possibly perform. The law itself and its administration is understood to disclaim as it does in its general aphorism, all intention of compelling impossibilities, and the administration of law must adopt that general exception in the consideration of particular cases. The applicability of the aforesaid maxims has been approved by this Court in Raj Kumar Dey v. Tarapada Dey, Gursharan Singh v. New Delhi Municipal Committee and Mohd. Gazi v. State of M.P.”_ 7 ``` OP(C) NO. 1865 OF 2017 ``` ## 8. In _**Sangram Singh v. Election Tribunal, Kotah**_ [AIR 1955 SC 425], the Hon’ble Supreme Court has observed thus: _“16. Now a code of procedure must be regarded as such. It is ‘procedure’, something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it._ _17. Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle."_ In the backdrop of the analysis of the facts and law, in the exercise of the supervisory powers of this Court under 8 ``` OP(C) NO. 1865 OF 2017 ``` Article 227 of the Constitution of India, I allow the original petition by ordering as follows: - (i) Ext.P7 order is set aside. - (ii) O.S.No.916/2011 is restored to file and is reposted before the Court of the I[st] Additional Subordinate Judge, Thiruvananthapuram on 04.07.2022. - (iii) The parties shall mark their appearance before the court below on 04.07.2022 through their counsel. - (iv) The court below shall, in the light of Ext.P5 mediation report, decree the suit and order the refund of the court fee to the petitioner, in accordance with law, as expeditiously as possible, at any rate, within one month from the date of receipt of this judgment. - (v) The Registry shall forward a copy of this judgment to the court below. sd/- ## **C.S.DIAS,JUDGE** DST/ 09.06.22 9 ``` OP(C) NO. 1865 OF 2017 ``` ## **`APPENDIX`** |**`PETITIONER EXHIBITS`**|**`PETITIONER EXHIBITS`**| |---|---| |**`EXHIBIT`**|**`TRUE COPY OF THE PLAINT IN O.S.916/2011 OF SUB COURT,`**| |**`P1`**|**`THIRUVANANTHAPURAM.`**| |**`EXHIBIT`**|**`TRUE COPY OF I.A.NO.1233/2016 IN O.S.916/2011 OF SUB`**| |**`P2`**|**`COURT, THIRUVANANTHAPURAM.`**| |**`EXHIBIT`**|**`TRUE COPY OF I.A.NO.1236/2016 IN O.S.916/2011 OF SUB`**| |**`P3`**|**`COURT, THIRUVANANTHAPURAM.`**| 10 ``` OP(C) NO. 1865 OF 2017 ``` ``` EXHIBITTRUE COPY OF THE ORDER PASSED BY THE 2ND ADDITIONAL P4COURT,THIRUVANANTHAPURAMON01/09/2016IN I.A.1233/2016 IN O.S.916/2011. EXHIBITTRUE COPY OF THE MEDIATOR'S REPORT WAS FILED IN THE P52ND ADDITIONAL SUB COURT ON 25/10/2016. EXHIBITTRUE COPY OF THE I.A.4278/2016 IN O.S.916/2011. P6 EXHIBITTRUE COPY OF THE ORDER PASSED BY THE 1ST ADDITIONAL P7SUB COURT THIRUVANANTHAPURAM IN I.A.4278/2016 IN O.S.916/2011 DATED 31/01/2017. ``` ## **`RESPONDENTS’ EXHIBITS: NIL`**