Pazhaniswami v. Bhaskaran, Manivan, and Rankan

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH THURSDAY, THE 25[TH] DAY OF MAY 2023 / 4TH JYAISHTA, 1945 ``` ``` FAO NO. 130 OF 2019 ``` ``` AGAINST THE ORDER IN I.A. No.107/2018 & I.A. No.108/2018 IN AS No.44/2010 OF SUB COURT, OTTAPPALAM DATED ``` ``` 30.11.2018 ``` ## **`APPELLANT/PETITIONER:`** ``` PAZHANISWAMI AGED 52 YEARS S/O. RANKAN, RESIDING AT VANNANTHURA, AGALI AMSOM AND DESOM, MANNARKAD TALUK, PALAKKAD DISTRICT. BY ADVS.SRI.P.JAYARAM SRI.SARATH CHANDRAN K.B. ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1BHASKARAN AGED 54 YEARS S/O. RANKAN, VANNANTHURAMEDU, AGALI AMSOM AND DESOM, P.O. AGALI, MANNARKAD TALUK, PALAKKAD DISTRICT, PIN-678 581. 2MANIVAN AGED 55 YEARS, S/O. RANKAN, VANNANTHURAMEDU, AGALI AMSOM AND DESOM, P.O. AGALI, MANNARKAD TALUK, PALAKKAD DISTRICT, PIN-678 581. 3RANKAN, AGED 74 YEARS, S/O. CHELLAN, VANNANTHURAMEDU, AGALI AMSOM AND DESOM, P.O. AGALI, MANNARKAD TALUK, PALAKKAD DISTRICT, PIN-678 581. BY ADVS.SRI.M.ASHRAF SMT.S.JASMINE ``` ``` THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 29.03.2021, THE COURT ON 25.05.2023 DELIVERED THE FOLLOWING: ``` F.A.O No. 130 of 2019 -:2:- ## **MARY JOSEPH, J.** - - - - - - - - - - - - - - - - - - - - - - - - F.A.O No. 130 of 2019 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25[th] day of May, 2023 ## **JUDGMENT** The appeal on hand is originated from an order passed by Subordinate Judges Court, Ottappalam (for short ‘the court below’) on 30.11.2018 in I.A. Nos.107/18 and 108/18 in A.S. No.44/10. I.A. No.107/18 was filed under Section 5 of the Limitation Act and I.A. No.108/18 was filed under Order IX Rule 9 CPC seeking to restore the appeal. Delay of 728 days was occurred in filing I.A.No.108 of 2018 to restore the appeal and that is also sought to be condoned. For the sake of convenience the parties to this appeal will hereinafter be referred to as the petitioner and respondents in accordance with their status before the court below. 2. A.S. No. 44 of 2010 was filed against the decree and judgment passed in O.S. No.68/2005 on the files of Munsiff Magistrate Court, Mannarkkad. One Adv.Georgekutty was conducting the appeal on behalf of the petitioner and on 14.12.2015 when the appeal was posted for hearing F.A.O No. 130 of 2019 -:3:- Sri.Georgekutty, who was entrusted with the conduct of the appeal by Sri.Sunil, failed to argue the appeal since he had shifted his office from Ottappalam to Pala. Therefore the appellate court was constrained to dismiss the appeal for default. The petitioner came to know about the dismissal of the appeal for default on 23.11.2017, when he contacted Advocate Sunil. According to him immediately on coming to know about dismissal of the Suit, he was laid up with viral fever for one week. After getting relived of the fever, he preferred an application seeking to condone delay of 728 days in filing the appeal and to restore the appeal back to file. 3. 3[rd] respondent was no more. Respondents 1 and 2 who are the legal heirs of the 3[rd] respondent filed objections in the applications. Contentions raised in the objection were that the petitions were filed on an experimental basis, that the appeal was listed on 04.11.2014, 04.12.2014, 19.01.2015, 07.03.2015, 11.08.2015, 14.10.2015, 03.12.2015 and ultimately on 14.12.2015, it was dismissed with costs to the respondents. It was contended, Advocate Georgekutty, the learned counsel who was entrusted by counsel holding vakalath for the petitioner failed to attend the case on 14.12.2015 when it was posted for hearing F.A.O No. 130 of 2019 ## -:4:- finally due to change of place of practice from Ottappalam to Pala lacks bonafides **.** There were enough postings of the appeal from 04.11.2014 till 14.12.2015 and since the petitioner was not represented on those days, it is clear that enquiry about the appeal was never made by him. It is incorrect to state that the petitioner came to know about the dismissal of the appeal only on 23.11.2017 and that he was affected with viral fever for one week since then. The petition is only to be dismissed for want of cogent and satisfactory explanation. 4. In the Interlocutory Applications petitioner was examined as PW1. Respondents did not adduce evidence of any nature. The court below noticed from the affidavit filed in lieu of chief examination that PW1 came to know about the dismissal of the appeal on 23.11.2017 but the petition to restore the appeal was filed only on 12.01.2018. The court below on a scrutiny of the averments of the petitioner in the petition and the oral evidence tendered by him as PW1, came to a conclusion that the entrustment of the appeal with Advocate Sunil is only an embellished version of him only in the witness box. In the petitions, the specific plea of the petitioner was that his counsel F.A.O No. 130 of 2019 -:5:- Sri.Georgekutty shifted his practice to Pala from Ottappalam and for the reason his appeal was left unheard. While adducing evidence as PW1, he petitioner had stated that he was making enquiries about the appeal to Advocate Sunil frequently and the latter made to convince him that the appeal is pending. According to him when he approached Advocate Sunil for getting back some documents, he was informed about the entrustment of the case file by the latter to Advocate Georgekutty. Accordingly enquiry was made at the office of Sri.Georgekutty at Ottappalam and was informed that he had already shifted his practice to Pala in the year 2014. He then managed to obtain the certified copies of the documents through a colleague of Advocate Georgekutty and came to know that the appeal was dismissed on 14.12.2015. PW1 had also deposed that after 23.11.2017 he was laid up due to viral fever for one week. The above explanation offered by the petitioner for the inordinate delay of 728 days was found by the court below unconvincing and accordingly the application seeking condonation of delay was dismissed. 5. It was contended by Sri.Jayaram, the learned counsel that the valuable right of the petitioner to contest the appeal on F.A.O No. 130 of 2019 -:6:- merits has been taken away by the impugned order. According to him, sufficient cause was shown by the petitioner explainaing the delay and the court below is highly unjustified in observing on the contrary in the impugned order. According to him, contra evidence was not adduced by the respondents and the burden of the appellant in the matter of explaining the delay can be discharged by showing some preponderance of probabilities. According to him, the delay has been satisfactorily explained by adducing cogent oral evidence. According to him, declining an opportunity to the petitioner to be heard in the appeal amounts to violation of the law settled on the point by judicial pronouncements that a litigant shall not be deprived of a hearing unless there is something equivalent to misconduct or gross negligence on his part. 6. The learned counsel has cited **Sreedhara Kurup vs. Mickel** [1968 KLT 599] wherein it has been held by a learned Single Judge of this Court : “Court cannot restore the suit as a matter of grace. On the other hand, it has always to be that a litigant should not be deprived of a hearing unless there has been something equivalent to misconduct or gross negligence on his part. It is largely a matter of wise discretion to be heard should be negatived only if there is gross negligence or gross carelessness and that if some steps have F.A.O No. 130 of 2019 ## -:7:- been taken and application for restoration has been made with some diligence and some evidence adduced making out a sufficient cause for absence, restoration should be ordered, minor misconduct or laches being corrected by the common curative of costs. The brooding spirit of natural justice must be in the background while ascertaining whether there is sufficient cause. A strict and narrow construction defeats the ends of justice which can be treadled only after a fair fight between the disputants.” (emphasis supplied) ## 7. **Aboo v. Ahammed** [1986 KLT SN 81], was also cited by the learned counsel wherein a Single Bench laid down the matters to be considered in an application to restore a suit dismissed for absence of plaintiff as follows: “Courts should consider several aspects before rejecting an application to restore a suit dismissed for default. It is advisable to consider such an application in a very strait laced manner. The approach should not be prudish or puritanical. Courts should take a broad view of the matter, well informed of that principle of natural justice that courts seldom decide disputes without affording a reasonable opportunity to the suitors before it, to present their case. A Judge should endeavour vigorously to do justice to the parties by exercising a wise and broad discretion with reference to the peculiar circumstances of the case. What is needed is a keenly responsive understanding of the facts and a kind, sympathetic and benign treatment of the human destinies that are passing before our eyes. We should use strenuous efforts to penetrate into the difficulties of the litigants who come before the court as patients come before the physician so that we may not offer them the “stone of bald reasoning” based on F.A.O No. 130 of 2019 -:8:- technicalities but the “bread of sympathetic relief”. A technical and narrow view of this matter will defeat the ends of justice.” ## 8. **Plantation Corporation of Kerala Ltd v. Hussain** [1998 (1) KLT 1008] was also relied on by the learned counsel to fortify his contentions. Paragraphs 15 and 16 were read out and therefore are extracted hereunder for easy reference. “15. Learned Sub Judge dismissed the applications for restoration of the suits on the ground that plaintiff could not show 'sufficient cause' for their non-appearance when the suits were called on for hearing. We are afraid that learned Sub Judge has not properly understood the scope and ambit of O.9, R.9 CPC. O.9, R.9 is extracted for easy reference : “(1) Where a suit is wholly or partly dismissed under R.8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the court that there was sufficient cause for his nonappearance when the suit was called on for hearing, the court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. (2) No order shall be made under this rule unless notice of application has been served on the opposite party.” The above mentioned rule contemplates that if a suit is dismissed for default, it should be restored only when “sufficient cause” is made out and not otherwise. When sufficient cause is shown the reopening is mandatory and when sufficient cause is not F.A.O No. 130 of 2019 -:9:- shown it is discretionary. If a suit is dismissed for default, not due to the fault of the plaintiff or due to reasons beyond the control of the plaintiff, needless to say, when an application is filed by the plaintiff, the court is bound to restore the suit, since those grounds would constitute sufficient cause for his non-appearance. Those are areas where the court has no discretion, and the court is bound to restore the suit. There may be cases where the plaintiff could not appear on the date notified due to his default, but the plaintiff should show sufficient reasons for his non-appearance. In those cases also, court is also bound to restore the suit, since the plaintiff has established sufficient cause. There may be also cases where the plaintiff could not establish sufficient cause. Still the court should exercise its discretion depending upon facts of each case. That is the reason why Legislature has given power to the courts to set aside the order of dismissal “on such terms as to costs or otherwise as it thinks fit.” 16. Legislature has used the expression 'as it thinks fit' in O.9, R.9, which gives considerable amount of discretion to the court while entertaining an application for restoration of the suit, which was dismissed for default. The expression 'as it thinks fit' came up for consideration before the Supreme Court in AIR 1984 SC 1164. Supreme Court said that that expression confers very wide jurisdiction on an authority which exercises the power. Calcutta High Court in AIR 1989 Cal.91 (Dulal Chandra v. Banamati Guchatt), relying upon the decision of the Supreme Court in Collector Land Acquisition, Anantnag v. Kattji, AIR 1987 SC 1353, while considering the scope of O.IX, R.9 took the view that while considering the expression 'sufficient cause' Legislature has intended to use it as an elastic expression so as to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of courts. According to the Court, a liberal approach ought to have been made to understand the F.A.O No. 130 of 2019 -:10:- 'sufficient cause' as to the absence of the petitioner on the date of dismissal of the suit for default. Court felt that for ends of justice, an opportunity may be given to the petitioner to contest the main case on merit.” 9. It is submitted by the learned counsel that in the light of the ratios relied on by him as above, the petitioner is entitled to have the impugned orders reversed and to have orders condoning the delay and restoring the appeal passed in his favour. 10. Per contra, the learned counsel for the respondent submits that the explanation given by the appellant for getting the inordinate delay condoned being inconsistent, the court below is justified in passing the order dismissing the applications and taken up in challenge in the appeal on hand. According to her, even in I.A. No.107/18 filed before the appellate court seeking to condone the delay in getting the appeal restored. The fault on the part of the counsel is taken for granted, then also the delay of about 50 days being occurred from 23.11.2017, the date on which knowledge of dismissal of appeal is made known to him. The admitted case of the appellant was that he was bedridden due to viral fever for one week and not for further period. But, neither a medical document nor a medical certificate issued by a medical F.A.O No. 130 of 2019 ## -:11:- practitioner to establish the same is produced. According to the learned counsel, in the factual scenario of the decisions relied on by the learned counsel, it is disclosed that some documents have been produced by the petitioners therein to establish the medical grounds projected. According to him, Order IX Rule 9 CPC empowers the courts to exercise discretion in the matter of condonation of delay, if some cause is shown and therefrom the courts could draw the conclusion that the litigant's act does not amount to misconduct or gross negligence or gross carelessness on his part. The learned counsel has also pointed out that the appeal on hand was also filed from the impugned orders in the interlocutory applications, with a delay of 122 days and rheumatic ailments from 14.01.2019 was stated as the reason for the delay. According to him, the medical documents to evidence the ailments suffered are not produced and to justify the non-production, the treatment was claimed to have been availed under traditional methods. According to him, certified copies of the impugned order have been admitted in the affidavit as obtained on 11.01.2019. Thus the learned counsel vehemently urged to dismiss the appeal. 11. The delay occurred is more than 2 years and therefore F.A.O No. 130 of 2019 ## -:12:- indisputably inordinate. As rightly pointed out by the learned counsel for the respondent the decisions relied on by the learned counsel are laid by various courts in various contexts different from the one on hand. It is specifically stated in those decisions that it is a matter of discretion for the court, if the reason stated is insufficient. It is further stated that discretion is liable to be exercised liberally to see that the litigant's right to be heard is protected, if misconduct cannot be attributed to him and he cannot be found to be neglect or careless in projecting his claim. 12. In the backdrop, the factual situation and evidence in the case on hand needs to be evaluated. It is pertinent to note that pleadings of the petitioner and the evidence adduced by him as PW1 are inconsistent. Evidence was also adduced with reference to certain matters for which specific pleadings are lacking. It is the case of the appellant that the counsel whom he had engaged to file the appeal had entrusted another counsel without his knowledge or consent. According to him, enquiries were made by him frequently to the counsel engaged by him and it was misrepresented by him that the appeal is not disposed of. 13. According to him on 23.11.2017, he contacted his counsel for obtaining some documents produced in the appeal and F.A.O No. 130 of 2019 -:13:- then alone the entrustment of his case to another counsel at Ottappalam was disclosed to him. The counsel engaged by him was neither questioned by him nor enquiries were made about the counsel who was entrusted with the case by him. The petitioner directly made enquiry at the office of the counsel at Ottappalam and was informed that the latter had shifted his practice from Ottappalam to Pala. Then he made enquiries at the court and was informed that his appeal was dismissed for default on 14.12.2015. Therefore violation of professional ethics and clear cut misconduct of two counsel have been projected by him. But it is a matter of surprise for this Court that, he has not proceeded to file any complaint against any of them for not prosecuting his case properly. Therefore, the reason projected in the belief of this Court is an unbelievable one. 14. The appeal preferred was against dismissal of a suit and that was dismissed for default on 14.12.2015. Being an appeal the petitioner has no role to play personally. The whole role to be played was the counsel engaged by him. Whatever be the reason stated, though not found to be a sufficient cause, the petitioner cannot be made personally responsible for that. Therefore, this Court is inclined to take the delay occurred till 23.11.2017 as resulted due to reasons beyond the control of the petitioner. F.A.O No. 130 of 2019 -:14:- 15. But, the matter will not end there. The admitted case of the petitioner itself was that the certified copy of the documents were obtained through another counsel in the office of Sri.Georgekutty on 23.11.2017. He has sworn accordingly in his proof affidavit also. But during cross examination he denied that. Whatever be the case, the petitioner was static on his say that the factum of dismissal of the appeal came to his knowledge on 23.11.2017. The applications to restore the appeal and condone the delay was filed only on 12.01.2018. According to the appellant after being acquainted of the dismissal of the appeal on 23.11.2017, he was bedridden with viral feverfor a week. But, a document to establish that medical reason is not forthcoming. Evenif this Court proposes to condone the delay of one week on the disestablished medical ground, then also there is delay of 43 days, which was not even attempted to explain. Apart from all the above, as pointed by the learned counsel for the respondent and also revealed from the records of the appeal on hand, the filing of the appeal was also with a delay of 122 days and without any cogent materials to explain the reason, that was sought to be F.A.O No. 130 of 2019 -:15:- condoned. 16. The factual matrix of the decisions, cited by the learned counsel being distinct from the one in the appeal on hand, there is absolutely no reason to rely on those. From the discussions made hereinabove, the pleadings projected and the evidence adduced, the appellant has made himself negligent and careless in prosecuting his case. Going by the materials which formed the basis for the appeal to be originated, this Court finds that the restoration of the appeal to facilitate hearing will not inure to the benefit of the appellant. For the foregoing reasons, the appeal fails and is dismissed. ## **MARY JOSEPH, JUDGE** ttb