High Court of KeralaSingle Judge2016-06-29Original Petitions disposed of; lower court’s c...

Shiny Babu v. Janardhanan and Shiji (OP(C).Nos. 1395 of 2016 and 1398 of 2016(O))

Case / Petition Number:OP(C).No. 1395 of 2016 (O) and OP(C).No. 1398 of 2016 (O)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Judgment Date: 2016-06-29
Court Decision / Holding: The quantum of cost fixed by the court below will stand reduced to Rs. 3,000/- (Rupees Three thousand only) each in each appeal. The petitioner shall pay the said cost within two months from today in each appeal, failing which I.A. No.7/2016 in A.S. No.37/2014 and I.A. No.8/2016 in A.S. No.38/2014 will stand dismissed. These Original Petitions (Civil) are disposed of accordingly.
Final Disposition: Original Petitions disposed of; lower court’s cost fixed reduced to Rs. 3,000 per appeal, with two-month time to pay, failing which the corresponding interlocutory applications will stand dismissed.

Parties to the Case

Appellants / Petitioners

Shiny Babu

Respondents

Janardhanan
Shiji

Legal Representation & Advocates

Counsels for Petitioners

• Sri. M. Narendrakumar

Counsels for Respondents

• Sri. Unnikrishnan V. Alapatt

Case Synopsis & Summary

These Original Petitions (Civil) arise from interlocutory orders in I.A. Nos. 7 and 8 of 2016 in A.S. Nos. 37 and 38 of 2014 before the Additional District Court-IV, Thodupuzha. The petitioner, Shiny Babu, sought readmission of two appeals that had been dismissed for default. The court below had allowed readmission on condition that the petitioner deposit Rs. 10,000 as costs in each appeal within two weeks; failing which, the petitions would be dismissed with costs. The respondents contended that the petitioner’s side was present at the court premises and that the counsel arrived late, indicating willful default rather than unavoidable delay. The judiciary’s challenge to the order centers on whether such costs are proportionate and properly justified, especially since the underlying suit involved only an injunction. The petitioner relied on a Supreme Court ruling in Sanjeev Kumar Jain v. Raghubir Saran Charitable Trust and Others, which emphasizes that costs should be realistic and practical rather than excessive. The High Court, after reviewing the facts and laches in the conduct of the petitioner’s counsel, found the lower court’s quantum of Rs. 10,000 per appeal to be disproportionate and accordingly reduced it to Rs. 3,000 per appeal. The petitions were disposed of with a direction to pay the reduced costs within two months; otherwise the interlocutory applications would stand dismissed. The decision underscores a balancing approach: discouraging dilatory tactics while avoiding punitive, unwarranted cost impositions.

Provisions of Law Cited

Order XLI Rule 19 of the Code of Civil Procedure (CPC)

Legal Doctrines & Maxims

Doctrine of laches
Realistic and practical costs principle (as discussed in Sanjeev Kumar Jain v. Raghubir Saran Charitable Trust)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that readmission of the appeals should not be fettered by a heavy cost; the order imposing Rs. 10,000 per appeal is punitive and not reflective of actual expenses, especially given traffic impediments and the history of occasional delays rather than deliberate default. Citing Sanjeev Kumar Jain, the petitioner argues that costs must be realistic and proportionate to the conduct and that the quantum fixed was excessive, warranting adjustment to a reasonable figure and a grant of readmission subject to a modest cost liability. The burden of proof lies with the petitioner to show non-dilatory conduct and to justify the delay as unavoidable rather than willful.

Contentions of Respondents

The respondents maintain that the petitioner’s counsel appeared late and that the appeals were dismissed for default after repeated delays and previous warnings. They emphasize that the court below exercised caution by granting last chances and that costs were intended to penalize persistent laxity and ensure diligence in prosecuting the appeals. They contend the order reflects the gravity of laches and the need to deter frivolous delays, arguing the lower court’s decision to impose Rs. 10,000 was appropriate and proportionate given the circumstances.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sanjeev Kumar Jain v. Raghubir Saran Charitable Trust and Others	(2012) 1 SCC 455	Positive	Cited to support the principle that actual costs must be realistic and practical, not fanciful, guiding the reduction in quantum of costs in the present case.

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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 K.HARILAL** **WEDNESDAY, THE 29TH DAY OF JUNE 2016/8TH ASHADHA, 1938Q** ## **OP(C).No. 1395 of 2016 (O)** **--------------------------------------** ## **IA.NO.7/2016 IN AS.NO.37/2014 OF 1ST ADDL.DISTRICT COURT-IV, THODUPUZHA** **--------------------** ## **PETITIONER(S):** **----------------------** **SHINY BABU, W/O. BABU, AGED 37 YEARS, RESIDING AT CHACKALACKAL HOUSE, WEST KODIKULAM KARA, KODIKULAM VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT.** ## **BY ADV. SRI.M.NARENDRA KUMAR** ## **RESPONDENT(S):** **-------------------------** ## **1. JANARDHANAN,** **S/O. DAMODARAN, AGED 40 YEARS, RESIDING AT VETTUKALLUMPURATHU HOUSE, WEST KODIKULAM KARA, KODIKULAM VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT, PIN-685584.** **2. SHIJI, AGED 41 YEARS,** **W/O. JANARDHANAN, RESIDING AT VETTUKALLUMPURATHU HOUSE, WEST KODIKULAM KARA, KODIKULAM VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT, PIN-685584.** ## **BY ADV. SRI.UNNIKRISHNAN.V.ALAPATT** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 29-06-2016, ALONG WITH OPC.NO.1398/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** **OP(C).No. 1395 of 2016 (O)** **-------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-------------------------------------** - **P1: TRUE COPY OF THE I.A.NO. 7/2016 IN A.S.NO. 37/2014 ON THE FILE OF THE ADDITIONAL DISTRICT COURT, THODUPUZHA.** - **P2: THE TRUE COPY OF THE COUNTER-AFFIDAVIT TO I.A.NO. 7/2016.** **P3: THE TRUE COPY OF THE ORDER DATED 06-04-2016 IN I.A.NO. 7/2016 IN A.S.NO. 37/2014.** **RESPONDENT(S)' EXHIBITS** **---------------------------------------** **NIL.** **/ TRUE COPY /** **P.S. TO JUDGE** **PJ** ## **K. HARILAL, J.** **-----------------------------------------------------O.P. (C) Nos. 1395 & 1398 of 2016-O -----------------------------------------------------Dated this the 29[th] day of June, 2016** ## **JUDGMENT** Since the parties and the matters in issue involved in both these cases are common, these Original Petitions (Civil) are heard together and disposed of accordingly. 2. The petitioner is the appellant in A.S.Nos.37 and 38 of 2014 on the files of the Additional District Court-IV, Thodupuzha. These Original Petitions (Civil) are filed challenging the orders passed by the court below in I.A.Nos.7 and 8 of 2016 respectively in the above appeals. The above Interlocutory Applications were filed seeking readmission of the appeals which were dismissed for default. According to the petitioner, both the appeals were posted for hearing on **O.P. (C) Nos. 1395 & 1398 of 2016** -: 2 :- 22/12/2015 and the counsel was ready for hearing; but the court below dismissed the appeals for default, since there was no representation on the side of the petitioner. Consequently, the petitioner filed the above Interlocutory Applications seeking readmission of the appeals under Order XLI Rule 19 of the Code of Civil Procedure. According to the petitioner, his office is at Thodupuzha. As a result of traffic block, he failed to reach the court premises before roll call and hence he failed to represent the case. 3. The respondents filed a very strong objection contending that he was present at the courtyard of the court from 10.45 a.m. onwards on 22/12/2015. In fact, he had seen the counsel for the appellant reaching the court premises at 10.50 a.m. along with his juniors. 4. After considering the rival pleas, the court below allowed the applications on condition that the petitioner shall deposit a cost of `10,000/- each, within two weeks from the date of the order, failing which the **O.P. (C) Nos. 1395 & 1398 of 2016** -: 3 :- petitions will stand dismissed with costs. The legality of the imposition of cost of `10,000/- each is challenged in these Original Petitions (Civil). 5. Heard the learned counsel for the petitioner. 6. The learned counsel for the petitioner advanced arguments in support of the grounds urged in the Memorandum of Original Petitions (Civil) and cited a decision of the Supreme Court in Sanjeev Kumar Jain v. Raghubir Saran Charitable Trust and Others [(2012) 1 SCC 455]. 7. Going by the impugned orders, it could be seen that the court below imposed cost not on the basis of the non-appearance on 22/12/2015; but the court below imposed cost on the basis of the previous conduct of the lawyer in conducting the case. In the impugned orders, it is specifically stated that though the case was posted for hearing on 9 occasions, on several occasions, there was no representation and the appeals were posted with orders of last chance thrice; but the counsel appearing for the petitioner **O.P. (C) Nos. 1395 & 1398 of 2016** -: 4 :- was not prepared to submit his case and it is in that background also, the appeals were dismissed on 22/12/2015 for default. 8. On the above reasoning, it could be reasonably inferred that the court below imposed the cost of `10,000/- each on a finding that the counsel was not diligent in prosecuting the appeals. I do not find any reason to disbelieve the finding of the court below that he failed to appear before the court on several occasions. If that finding was wrong or erroneous, certainly, the petitioner could have produced the a certified copy of the proceeding sheet before this Court; but the petitioner has not chosen to do so. In the absence of any materials, contrary to the finding of the court below, it could be reasonably presumed that, as rightly pointed out by the court below, the learned counsel for the petitioner failed to appear before the court below on several occasions and he was not diligent in prosecuting the appeals. If that be so, the court below is justified in imposing cost. **O.P. (C) Nos. 1395 & 1398 of 2016** -: 5 :- 9. The next question to be considered is, can the quantum of cost fixed by the court below be justified? The suit is one for an injunction simpliciter only and the court below dismissed the suit against which the appeals are filed. 10. In the decision cited by the learned counsel for the petitioner in Sanjeev Kumar Jain v. Raghubir Saran Charitable Trust and Others [(2012) 1 SCC 455], the Supreme Court held that the actual realistic cost should have a correlation to costs which are realistic and practical. It cannot obviously refer to fanciful and whimsical expenditure by parties who have the luxury of engaging a battery of high-charging lawyers. 11. Having regard to the entire facts and circumstances of the cases, particularly the gravity of the laches on the part of the petitioner, I find that the quantum of cost fixed by the court below is a little more and disproportionate. 12. In the above view of the matter, the quantum ## **O.P. (C) Nos. 1395 & 1398 of 2016** -: 6 :- of cost fixed by the court below will stand reduced to `3,000/- (Rupees Three thousand only) each in each appeal. The petitioner shall pay the said cost within two months from today in each appeal, failing which I.A. No.7/2016 in A.S. No.37/2014 and I.A. No.8/2016 in A.S. No.38/2014 will stand dismissed. These Original Petitions (Civil) are disposed of accordingly. Sd/- ## **(K. HARILAL, JUDGE)** ## **Nan/** //true copy// P.S. to Judge