High Court of KeralaSingle Judge2020-11-06Disposed of the original petition; Ext.P9 confi...

Sathyan and Vijayakumar v. Ravi (O.P.(C) No.32 of 2020; OS 6/2014, Sub Court, Thodupuzha)

Case / Petition Number:OP(C) No.32 of 2020

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: R. Narayana Pisharadi
Judgment Date: 2020-11-06
Court Decision / Holding: Original petition disposed: Ext.P9 judgment confirmed on deposit of an additional Rs.5,000 by the respondent in the trial court towards costs to be paid to the petitioners; deposit due by 01.12.2020. If not deposited, the original petition will stand allowed and Ext.P9 set aside, with Exts.P6 and P7 restored. If Exts.P3 and P4 are restored to the trial court on deposit of the additional costs, the trial court shall dispose of those applications on merits as expeditiously as possible, unfettered by observations touching upon merits. All interlocutory applications in this original petition are closed.
Final Disposition: Disposed of the original petition; Ext.P9 confirmed with conditions; further steps on deposit; interlocutory applications closed

Parties to the Case

Appellants / Petitioners

Sathyan
Vijayakumar

Respondents

Ravi (S/o Krishnan)

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Bobby George
• Adv. Joy C. Paul

Counsels for Respondents

• Adv. C. P. Peethambaran

Case Synopsis & Summary

This petition under Article 227 of the Constitution of India challenges Ext.P9 judgment dated 29-10-2019 of the District Court, Thodupuzha, in CMA No. 39/2018 arising from OS 6/2014 pending in the Sub Court, Thodupuzha. The suit, instituted for specific performance of a sale agreement dated 30-05-2013 (or, in the alternative, for realization of Rs. 2,00,000 admitted as advance), was dismissed for default on 15-02-2016. The plaintiff moved for restoration under Order IX Rule 9 CPC and sought condonation of a delay of about 693 days. The trial court dismissed these restoration applications as non-est. On appeal, the District Court allowed the restoration but with a condition: deposit Rs. 5,000 as costs payable to the defendants. The petitioners challenge Ext.P9, arguing the delay was inordinate, explanations vague, and the appellate court should not have addressed merits. The respondent contends the delay should be condoned in the interests of justice and merits should be examined. The High Court acknowledges laches but endorses the appellate court’s view that justice demands a decision on merits, though it enhances costs and conditions. The judgment ultimately disposes of the petition: Ext.P9 stands confirmed on deposit of an additional Rs.5,000 by 01-12-2020; failure to deposit will set aside Ext.P9 and restore Exts.P6/P7; restoration of Exts.P3/P4 would occur only on deposit, and all interlocutory applications are closed.

Provisions of Law Cited

Order IX Rule 9 CPCArticle 227, Constitution of India

Legal Doctrines & Maxims

Litigation should be adjudicated on merits (adjudication on merits)
Interests of justice demand a decision on merits
Robin Thapa v. Rohit Dora, AIR 2019 SC 3225 (principle cited: prefer merits over default termination)

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicants contended that restoration of the suit was sought after an inordinate delay of about 693 days, with a vague explanation for the delay. They argued that the trial court’s dismissal of the restoration applications should not be reopened by the appellate court, as merits could not be considered when restoration was not properly justified. They urged upholding the trial court’s default to avoid protraction and preserve fairness to defendants. They submitted that Ext.P9’s reasoning on merits was improper, and the court should restore the matter only if delay is satisfactorily explained.

Contentions of Respondents

The respondents (plaintiff) argued that the delay was substantial but could be excused in the interests of justice to enable a decision on merits. They highlighted remittance of substantial court fees as an indicator of the plaintiff’s intent to contest and obtain a decree on merits. They contended that the appellate court rightly considered merits to ensure justice, and that the additional costs and restoration of the matter would safeguard the defendants’ interests while allowing the suit to proceed on its merits.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Robin Thapa v. Rohit Dora	AIR 2019 SC 3225	Positive	Cited to support the proposition that adjudication on merits should be preferred and that litigation should not be terminated merely by default, guiding the court to decide on merits when possible.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **FRIDAY, THE 06TH DAY OF NOVEMBER 2020 / 15TH KARTHIKA, 1942** ## **OP(C).No.32 OF 2020** **OS 6/2014 OF SUB COURT,THODUPUZHA** ## **PETITIONER:** **1 SATHYAN AGED 60 YEARS S/O. NEELAKANDAN, EDAYATHU (H), PANNIMATTOM KARA, VELLIYAMATTOM VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT, PIN 685 588 2 VIJAYAKUMAR, AGED 48 YEARS S/O. KUTTAPPAN, MANATHUKUDY (H), VENGOLA KARA, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT, PIN 683556 BY ADVS. SRI.BOBBY GEORGE SRI.JOY C. PAUL** ## **RESPONDENT:** **RAVI AGED 61 YEARS S/O. KRISHNAN, PARAPPANATTU HOUSE, KALLOORKKADU KARA, KALLOORKKADU VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DIST PIN 686 668** ## **R1 BY ADV. SRI.C.P.PEETHAMBARAN** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 04-11-2020, THE COURT ON 06-11-2020 DELIVERED THE FOLLOWING:** O.P.(C) No.32 of 2020 2 ## **R.NARAYANA PISHARADI, J** ************************ O.P.(C) No.32 of 2020 ----------------------------------------------Dated this the 6[th] day of November, 2020 ## **J U D G M E N T** The petitioners are the defendants and the respondent is the plaintiff in the suit O.S.No.6/2014 on the file of the Sub Court, Thodupuzha. 2. The suit was instituted for granting a decree for specific performance of an agreement dated 30.05.2013 alleged to have been executed by the plaintiff and the defendants for sale of the plaint schedule property and in the alternative, for realisation of the amount of Rs.2,00,000/- allegedly given by the plaintiff to the defendants as advance towards sale consideration. 3. The suit came up for trial in the special list on 15.02.2016. On that day, Ext.P2 application was filed by the counsel for the plaintiff seeking adjournment of the trial of the suit on the ground that the plaintiff was not well. The trial court O.P.(C) No.32 of 2020 3 dismissed Ext.P2 application and consequently dismissed the suit also for default. 4. Subsequently, the plaintiff filed Ext.P3 application under Order IX Rule 9 of the Code of Civil Procedure, 1908 (for short 'the Code') to restore the suit to file. The plaintiff also filed Ext.P4 application to condone the delay of 693 days in filing Ext.P3 application. 5. On 05.09.2018, when the trial court took up Exts.P3 and P4 applications for consideration, the plaintiff was absent. Therefore, the trial court dismissed Exts.P3 and P4 applications as per Exts.P6 and P7 orders, which read as follows: _“Petitioner absent. Respondent represented. Petitioner is not ready for evidence. Hence petition is dismissed.”_ 6. The plaintiff filed appeal as C.M.A. No. 39/2018 in the District Court, Thodupuzha challenging Exts.P6 and P7 orders passed by the trial court. 7. As per Ext.P9 judgment, the District Court allowed the appeal and set aside Exts.P6 and P7 orders passed by the trial court on the condition that the plaintiff shall deposit an O.P.(C) No.32 of 2020 4 amount of Rs.5,000/- as costs to be paid to the defendants. 8. The defendants have filed this original petition under Article 227 of the Constitution of India challenging the legality and propriety of Ext.P9 judgment. 9. Heard the learned counsel for the petitioners and also the respondent. 10. Learned counsel for the petitioners contended that there was inordinate delay of 693 days in filing the application for restoration of the suit and the plaintiff had not properly explained the delay and therefore, the appellate court should not have interfered with Exts.P6 and P7 orders passed by the trial court. 11. The relevant portion of Ext.P9 judgment of the appellate court, which gives the reasons for allowing the appeal, reads as follows: _“Even thereafter application to restore the suit was filed after a delay of about 693 days. Reason stated is that, when the matter came up for trial on 15.12.2016, he was working in Karnataka. The reason stated for adjourning the trial is illness. In the application to restore the suit, delay is stated to_ O.P.(C) No.32 of 2020 5 _be due to his engagement elsewhere. Regarding this aspect for what purpose appellant was in Karnataka or details regarding engagement and the specific reason for being in Karnataka for such a long period, without being able to get in touch with counsel or to come over to Thodupuzha, are not stated. It is a vague reason, is evident. In spite of that it is to be noted that plaintiff had remitted a huge amount as court fees. This will show that he is desirous to contest the suit and to get a decree on merits. It is evident that there are latches on his part. Interest of justice demands a decision on merit. However the hardships caused to the defendant/respondent cannot be lost sight of. In the circumstance, I think that subject to payment of Rs.5,000/- to defendant/respondent, petition can be allowed.”_ 12. The appeal before the District Court was filed against the dismissal of Exts.P3 and P4 applications for default by the trial court. Therefore, the question whether the plaintiff had shown sufficient cause for the delay of 693 days in filing Ext.P3 application for restoring the suit to file was not a matter for consideration by the appellate court. When the appellate court intended to restore the aforesaid applications to the file of the O.P.(C) No.32 of 2020 6 trial court for consideration by it, it should not have discussed the merits of those applications. 13. Except the above mentioned flaw in Ext.P9 judgment, the appellate court has taken a reasonable view of the matter in finding that interests of justice demand a decision on merits in Exts.P3 and P4 applications. 14. Ordinarily, a litigation is based on adjudication on the merits of the contentions of the parties. Litigation should not be terminated by default, either of the plaintiff or the defendant. The cause of justice does require that, as far as possible, adjudication be done on merits (See **Robin Thapa v. Rohit Dora : AIR 2019 SC 3225** ). 15. However, the fact remains that the suit is of the year 2014. Considering the fact that there were laches on the part of the plaintiff which have caused hardship and prejudice to the defendants especially on account of the protraction of the trial, I find that the costs awarded by the appellate court to the defendants should be enhanced to Rs.10,000/-. O.P.(C) No.32 of 2020 7 16. Consequently, the original petition is disposed of as follows: Ext.P9 judgment shall stand confirmed on deposit of a further amount of Rs.5,000/- (Rupees five thousand only) by the respondent/plaintiff in the trial court towards additional costs to be paid to the petitioners/defendants. The parties shall appear before the trial court on 01.12.2020. The additional amount of Rs.5,000/- (Rupees five thousand only) shall be deposited by the respondent/plaintiff in the trial court on or before that date. If the respondent/plaintiff fails to deposit the amount as above within the stipulated period, this original petition will stand allowed and Ext.P9 judgment will stand set aside and Exts.P6 and P7 orders of the trial court shall stand restored. If Exts.P3 and P4 applications are restored to the file of the trial court on deposit of the additional amount of costs by the respondent/plaintiff, the trial court shall dispose of those applications on merits as expeditiously as possible untrammelled by any of the observations made in Ext.P9 judgment touching upon the merits of those applications. 8 O.P.(C) No.32 of 2020 17. All interlocutory applications pending in this original petition are closed. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr O.P.(C) No.32 of 2020 9 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S NO. 6/2014 OF SUB COURT, THODUPUZHA** - **EXHIBIT P2 TRUE COPY OF THE PETITION FILED BY THE RESPONDENT IN O.S NO. 6/2014 OF SUB COURT, THODUPUZHA FOR ADJOURNMENT OF THE TRIAL OF THE SUIT** - **EXHIBIT P3 TRUE COPY OF THE PETITION BEARING I.A NO. 87/2018 IN O.S NO. 6 OF 2014 OF SUB COURT, THODUPUZHA, FOR SETTING ASIDE THE DISMISSAL ORDER DATED 15-02-2016.** - **EXHIBIT P4 TRUE COPY OF THE PETITION BEARING I.A NO. 88/2018 IN O.S NO. 6 OF 2014 OF SUB COURT, THODUPUZHA, FOR CONDONING THE DELAY DATED 1502-2016.** - **EXHIBIT P5 TRUE COPY OF THE COUNTER AFFIDAVIT FILED AS AGAINST THE I.A NO. 87/2018 IN O.S NO. 6 OF 2014 OF SUB COURT, THODUPUZHA** - **EXHIBIT P6 TRUE COPY OF THE ORDER PASSED IN I.A NO. 87/2018 IN O.S NO. 6/2014 OF SUB COURT, THODUPUZHA** - **EXHIBIT P7 TRUE COPY OF THE ORDER PASSED IN I.A NO. 88/2018 IN O.S NO. 6/2014 OF SUB COURT, THODUPUZHA** - **EXHIBIT P8 TRUE COPY OF THE C.M.A NO. 39/2018 OF DISTRICT COURT, THODUPUZHA.** - **EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 29-10-2019 OF DISTRICT COURT, THODUPUZHA.** ## **RESPONDENT'S EXHIBITS : NIL** TRUE COPY PS TO JUDGE