S.Sreekantan Nair v. R. Rajendran Nair

1 ``` OP(C) NO. 2718 OF 2018 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS FRIDAY, THE 7[TH] DAY OF OCTOBER 2022 / 15TH ASWINA, 1944 OP(C) NO. 2718 OF 2018`** ``` IN OS 834/2013 OF III ADDITIONAL MUNSIFF COURT ,TRIVANDRUM PETITIONER: ``` ``` S.SREEKANTAN NAIR AGED 52 YEARS S/O LATE SIVASANKARA PILLAI FROM ATHESH, KHADI BOARD ROAD, OORUTTUKALA, NEYYATTINKARA, NOW RESIDING AT N M C NO. III/86, POOVANGAVILAKATHU, ATHIYANOOR VILLAGE, NEYYATTINKARA TALUK, PIN-695123 ``` ``` BY ADVS. VADAKARA V.V.N.MENON SRI.N.S.GOPAKUMAR ``` ## **`RESPONDENT:`** ``` R.RAJENDRAN NAIR @ RAJENDRAN CHANDRA NIVAS, TC NO, X1X/180(1), POOJAPPURA POST OFFICE LANE, MUDAVANMUGHAL, THIRUMALA VILLAGE, THIRUVANANTHAPURAM TALUK, PIN-695012 ``` ``` BY ADV R.T.PRADEEP ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 07.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 ``` OP(C) NO. 2718 OF 2018 ``` ## **Dated this the 7[th] day of October, 2022** ## **JUDGMENT** Aggrieved by the orders in I.A.Nos.3375/2015 (Ext.P3) and 6269/2015 (Ext.P5) in O.S.No.834/2013 of the Court of the Additional Munsiff-III, Thiruvananthapuram, the plaintiff in the suit has filed the original petition. The defendant is the respondent. 2. The concise case of the petitioner, relevant for the determination of the original petition, is that he has filed the suit against the respondent, his close relative, for recovery of Rs.9,90,250/-. The suit was listed for trial on 04.04.2015. As the learned counsel for the petitioner is a practising lawyer before this Court, he had entrusted the matter to one of his colleagues. On 04.04.2015, there was no sitting. The midsummer vacation was commencing from 10.04.2015 till 20.05.2015. The counsel was informed that there was no chance of the suit being listed before the vacation. The counsel went to Jharkand and returned on 10.04.2015. To his dismay, he found that the suit was called on 10.04.2015 and was 3 ``` OP(C) NO. 2718 OF 2018 ``` dismissed for default. On the day the courts reopened after vacation, i.e., 20.05.2015, the petitioner filed Ext.P2 application to restore the suit. The respondent opposed the same. By Ext.P3 order, the court below dismissed Ext.P2 application. Then, the petitioner filed I.A.No.6269/2015 (Ext.P4) to review Ext.P3 order. By the impugned Ext.P5 order, the court below dismissed Ext.P4 application. Exts.P3 and P5 are erroneous and wrong. Hence, the original petition. 3. Heard; Sri.Vadakara V.V.N.Menon, the learned Counsel appearing for the petitioner and Sri.R.T.Pradeep, the learned Counsel appearing for the respondent. 4. Sri.Vadakara V.V.N. Menon argued that the court below ought to have taken a lenient view in the matter because on the listed day, i.e.,04.04.2015, the counsel was very much present before the court below. However, as there was no sitting, the suit was adjourned to 10.04.2015, the last day before summer vacation. The counsel had assumed that the suit would be listed only after the summer recess and had gone to Jharkhand. The court dismissed the suit on 10.04.2015. On 4 ``` OP(C) NO. 2718 OF 2018 ``` the re-opening day itself, the restoration application was filed, which was dismissed. The application to review the order was also dismissed. The court below has adopted a hyper-technical and pedantic approach in mercilessly dismissing the suit and the subsequent applications. Exts.P3 and P5 orders are manifestly illegal and perverse and may be set aside. 5. Sri.R.T.Pradeep questioned the maintainability of the original petition. He vehemently argued that since Ext.P3 order is passed under Order 9 Rule 9 of the Code of Civil Procedure (in short, ‘Code’), the petitioner has an alternative statutory remedy under Order 43 Rule 1 (c) of the Code. Hence, this Court may not entertain the original petition under Article 227 of the Constitution of India. He relied on the decision of this Court in **Shanmughadas v. Malayil Subramanian** [2014 (1) KLT 1060] to fortify his contentions. 6. The points are whether: (i) the petitioner is to be relegated to invoke the statutory remedy provided under the Code. 5 ``` OP(C) NO. 2718 OF 2018 ``` (ii) there is any illegality in Exts.P3 and P5 orders passed by the court below. ## **Point No. (i)** 7. When the original petition came up for admission on 23.10.2018, this Court, on being prima facie satisfied and convinced that there is manifest illegality in the impugned orders, admitted the original petition and passed an interim order directing the respondent not to alienate the property that was attached before judgment. The interim order is still in force. 8. It is for the first time that the learned Counsel for the respondent has raised the point regarding the maintainability of the original petition on the ground of alternative remedy. 9. Undoubtedly, Ext.P3 order has been passed on an application filed under Order 9 Rule 9 of the Code, which is appealable under Order 41 Rule 1(c) of the Code. Dehors the alternative remedy, this Court admitted the original petition and passed an interim order. It is after four years that the respondent is raising the question of maintainability. Relegating 6 ``` OP(C) NO. 2718 OF 2018 ``` the petitioner to invoke the alternative statutory remedy at this stage will be a travesty of justice. 10. It is well settled that the question of jurisdiction has to be raised at the earliest point in time. Even otherwise, when this Court had exercised its discretionary powers and entertained the original petition, it is too late in the day for the respondent to now contend that the petitioner that the original petition is not maintainable in view of the alternative statutory remedy. 11. A three-Judge Bench of the Honourable Supreme Court in **Radhey Shyam and another v. Chhabi Nath and others** [(2015) 5 SCC 423] has, inter alia, held that there is no absolute bar in the High Courts’ entertaining original petitions under Article 227 of the Constitution of India in cases of exceptional rarity and manifest illegality, despite there being an alternative remedy. While appellate and revisional jurisdiction is regulated by the statutes, the power of superintendence under Article 227 is constitutional, and the same remains unaffected even after the curtailment of revisional powers by Act 46 of 1999. In 7 ``` OP(C) NO. 2718 OF 2018 ``` light of the above factual and legal matrix, I reject the contention of the learned Counsel for the respondent and answer point no. (i) in favour of the petitioner. ## **Point No. (ii)** 12. On an analysis of the pleadings and materials on record, it is seen that the suit was listed for trial on 04.04.2015. There was no sitting on the day. The suit was adjourned to 10.04.2015, i.e., the day the court was closing for summer vacation. As there was no representation for the petitioner, the suit was dismissed. On the re-opening day after vacation, i.e., on 20.05.2015, the petitioner filed I.A. No.3375/2015 to restore the suit. Nonetheless, by a cryptic order, the court below dismissed the application by holding that the reason stated by the petitioner was not genuine. 13. Immediately, the petitioner filed Ext.P4 application to review Ext.P3 order, which was also dismissed by the court below by Ext.P5 order, holding that there is no error apparent on the face of Ext.P3 order. 8 ``` OP(C) NO. 2718 OF 2018 ``` 14. The course adopted by the court below is hypertechnical and harsh. The court below ought to have borne in mind that on the day the suit was listed for trial, the case was adjourned for no fault of the petitioner but because there was no sitting. Further, on the day the suit was adjourned, i.e., 10.04.2015, the courts were closing for summer vacation for 40 days. So therefore, even if the trial had commenced on the said day, there was no possibility of the court below disposing of the suit on the same day. Hence, I am of the definite opinion that a lenient view should have been taken by the court below instead of perfunctorily dismissing the suit, the restoration petition and the review petition. 15. In **G.P.Srivastavav.R.K.Raizada & Others** [2000 KHC 1023], the Hon'ble Supreme Court has empathetically held that 'sufficient cause' contemplated under Order IX of the Code has to be liberally construed to enable the Court to do complete justice between the parties. The term 'sufficient cause' is an elastic expression for which there is no hard and fast rule. The 9 ``` OP(C) NO. 2718 OF 2018 ``` Court must be given wide discretion in deciding what is 'sufficient case'. 16. In **Robin Thapa v. Rohit Dora** [2019 KHC 6641], the Hon'ble Supreme Court has held that ordinarily 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. 17. In the above legal and factual background, I hold that there is a gross and manifest failure on the part of the court below, which warrants interference by this Court under Article 227 of the Constitution of India. As the suit is of the year 2013, complete justice would be done by directing the court below to dispose of the within a time frame. Hence, I answer point no. (ii) also in favour of the petitioner. In the result, I allow the original petition in the following manner: - i Exts.P3 and P5 orders are set aside. - ii Ext.P2 application is allowed. 10 ``` OP(C) NO. 2718 OF 2018 ``` (iii) O.S. No.834/2013 is restored to file. (iv) The parties are directed to appear before the Court of the Additional Munsiff-III, Thiruvananthapuram, on 01.11.2022. (v) As the suit is of the year 2013, the court below shall make every endeavour to dispose of the suit, in accordance with law, as expeditiously as possible, at any rate on or before 23.12.2022. SD/- **C.S.DIAS, JUDGE** rmm07/10/2022 11 ``` OP(C) NO. 2718 OF 2018 ``` ## **`APPENDIX OF OP(C) 2718/2018`** ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P1TRUE PHOTOCOPY OF THE CERTIFIED COPY OF THE ORDER OF ATTACHMENT BEFORE JUDGMENT DATED 2/7/2013 WITH REPORT OF THE AMIN AND THE SCHEDULE OF THE PROPERTY ATTACHED ``` ``` EXHIBIT P2TRUE COPY OF I.A.NO. 3375/2015 DATED 20/5/2015 WITH AFFIDAVIT OF THE PETITIONER FILED BY HIM BEFORE THE III ADDL. MUNSIFF'S COURT, TRIVADRUM IN OS NO.834/2013 EXHIBIT P3TRUE COPY OF THE ORDER DT.4/7/2015 PASSED BY THE II ADDL.MUNSIFF'S COURT,THIRUVANANTHAPURAM IN THE SAID I.A.NO.3375/2015 ``` ``` EXHIBIT P4TRUE PHOTOCOPY OF REVIEW PETITION I.A.NO.6269/2015 ALONG WITH THE AFFIDAVIT OFT HE ADVOCATE T.SREEKANTAN AND ORDER DATED 7/4/2015 PASSED BY THE HON'BLE HIGH COURT IN IA.NO.4833/2015 IN WP(C) NO.463 (C)/2004 (B) ``` ``` EXHIBIT P5TRUE PHOTOCOPY OF THE CARBON COPY OF THE ORDER DATED 7/9/2018 PASSED BY THE II ADDL.MUNSIFF'S COURT, THIRUVANANTHAPURAM ON I.A.NO.6269/2015 IN OS NO.834/2013 ```