High Court Kerala High Court

Surendran Nair vs Nessayyan on 28 January, 2009

Kerala High Court
Surendran Nair vs Nessayyan on 28 January, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRP.No. 851 of 2006()


1. SURENDRAN NAIR, S/O.VISWANATHAN NAIR,
                      ...  Petitioner

                        Vs



1. NESSAYYAN, S/O.THENKAYYAN NADAR,
                       ...       Respondent

                For Petitioner  :SRI.G.SUDHEER

                For Respondent  :SRI.S.V.PREMAKUMARAN NAIR

The Hon'ble MR. Justice PIUS C.KURIAKOSE

 Dated :28/01/2009

 O R D E R
                        PIUS.C.KURIAKOSE, J.
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                           C.R.P.No. 851 OF 2006
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                  Dated this the 28th day of January, 2009

                                     ORDER

Under challenge in this civil revision petition under Section 115

of Code of Civil Procedure is the judgment of the Subordinate Judge,

Neyyattinkara in C.M.A.No.8/06 by which the order passed by the

Munsiff, Neyyattinkara in applications for restoration of the suit and

for condonation of the delay caused in the matter of filing the

application for restoration was dismissed.

2. Heard Sri.G.Sudheer, learned counsel for the petitioner and

Sri.R.T.Pradeep, learned counsel for the respondent. The petitioner is

the plaintiff and the suit is for recovery of money based on a

promissory note. The suit stood posted for trial in special list on

17/10/2003. On that day, the petitioner plaintiff was not present.

Instead, his counsel filed an application under Order XVII Rule 1 CPC

seeking adjournment of the suit on the ground that the petitioner is

undergoing treatment as impatient in the Government Hospital,

Parassala for dysentery. The learned counsel did not become inclined

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to allow the application and the suit was dismissed for default on

17/10/2003.

3. Later on 17/08/2004 i.e. ten months after the expiry of

period of limitation for filing the restoration application, the present

application was filed raising a different ground. The ground now

raised is that the petitioner was undergoing treatment from PW2, a

Homeopath, for Arthritis, Rheumatism and allied diseases. At the

enquiry, the petitioner got himself examined as PW1 and the doctor

who had issued Ext.A1 certificate was examined as PW2. There was

no counter evidence on the side of the respondent. However, the

learned Munsiff was not inspired by the evidence given by PW1 and

PW2. It was noticed that the petitioner had conflicting versions in the

earlier application for adjournment and in the present application for

restoration. The court was not satisfied about the sufficiency of the

cause stated by the petitioner and accordingly the applications were

dismissed. The learned Subordinate Judge also in appeal concurred

with the conclusions of the learned Munsiff.

4. It will be stated immediately that there is considerable force

CRP.No.851/06 3

in the submission of Sri.R.T.Pradeep that the order passed by the

learned Munsiff and the judgment of the learned Subordinate Judge do

not suffer from any infirmity and much less any judicial infirmity as to

justify invocation of the revisional jurisdiction under Section 115 CPC.

5. On reading through the order of the Munsiff and the

judgment of the learned Sub Judge, I also feel that the conclusions

therein are fairly reasonable and it cannot be stated that there has been

irregular or illegal exercise of discretion by those courts in the matter

of condonation of delay. At the same time, I notice the following

aspects:

1) The reply notice which is produced along

with the suit and which is to be construed as part of the

pleadings will reveal that the defendant had admitted the

execution of the promissory note.

2) The plaintiff ordinarily does not stand to gain

anything by deliberately protracting the trial of his own

suit.

3) The learned Subordinate Judge has accepted

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the argument addressed on behalf of the plaintiff that the

plaintiff was actually present before the Munsiff Court on

17/10/2003. But it is clear that the plaintiff was not

present on 17/10/2003 as will be seen from the

application for adjournment filed on behalf of the plaintiff

by the counsel on that day.

4) The application for adjournment filed under

Order XVII Rule 1 by the counsel for the plaintiff which

is in conflict with the present application for restoration

and for condonation of delay is not supported by any

affidavit. Therefore the version of the petitioner that

there was some communication gap between the person

who imparted instructions to the advocate for preparing

the application for adjournment and the Advocate cannot

be said to be totally improbable. After all, the policy of

law is to facilitate adjudication of all causes on their

merits. Having regard to that policy, I am inclined to

allow the application for restoration and the application

CRP.No.851/06 5

for condonation of delay, however, only on stringent

conditions.

6. The result is that the impugned orders will stand set aside

and the two applications filed by the petitioner for restoration and

condonation of delay will stand allowed subject to the following

conditions:

1) The petitioner shall pay a sum of

Rs. 5,000/-( Rupees five thousand only) by way

of cost ( irrespective of the ultimate result of the

litigation) to the respondent either directly or

through the respondent’s counsel in this court

within three weeks from today.

2) The petitioner shall furnish security

before the Munsiff Court for the defendant’s cost

in the suit ( the Advocate fee payable as per the

Advocate Fee Rules plus a sum of Rs. 250/-)

within one month of receiving a copy of this

judgment.

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3) Even if the suit is ultimately decreed

after trial, no interest will be payable on the

principal amount mentioned in the promissory

note during the period from 17/10/2003 till today

i.e. 28/01/2009.

If the conditions 1 and 2 mentioned above are complied with on

time by the petitioner, this judgment will become operative, in which

case, the learned Munsiff will list the suit for trial in special list in the

earliest available list and dispose of the suit in accordance with law.

The learned Munsiff will not be influenced in any manner by any of the

observations contained herein regarding the merits of the contentions

raised in the suit.

PIUS.C.KURIAKOSE
JUDGE

sv.

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