IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 534 of 2004(L)
1. K.T.HASSAN,S/O.KUNJALIKUTTY, RESIDING AT
... Petitioner
Vs
1. KASIM KUNJU ISMAIL PILLA, AGED ABOUT
... Respondent
2. ABDUL SATHAR, AGED 43 YEARS,
For Petitioner :SRI.NAIR AJAY KRISHNAN
For Respondent :SRI.T.A.UNNIKRISHNAN
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :19/06/2007
O R D E R
PIUS C.KURIAKOSE, J.
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WP ( C ) NO. 534 of 2004
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Dated this the 19th day of June, 2007
JUDGMENT
Exhibit – P8 order by which the learned Subordinate Judge
dismissed two applications preferred by the plaintiff, one for
amendment of the judgment and decree so as to correct the
name of the defendant as Ismail Pilla S/o. Kassim Kunju instead
of Kassim Kunju, S/o. Ismail Pilla and another for making similar
corrections in the plaint is under challenge in this Writ Petition
under Article 227 of the Constitution of India instituted by the
plaintiff. Exhibit – P2 is the copy of the plaint instituted by the
petitioner, which is one for recovery of money on the basis of a
transaction between the petitioner and the 1st respondent. The
name of the 1st respondent is written in Exhibit-P2 as Kasim
Kunju aged about 36, S/o. Ismail Pillai. The relief is claimed
only against the 1st defendant Kassim Kunju, S/o. Ismail Pilla.
Several attempts were resorted to serve summons on the 1st
defendant in Ext.P2 failed. Resort was taken to substituted mode
of service and even publication in newspaper was effected.
Ultimately, the 1st defendant was set ex parte and the suit was
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decreed against him. But in execution proceedings it was
reported by Ismail Pilla, the recipient of the notice, the 1st
respondent herein that the decree is not executable against him
and that the decree is against Kassim Kunju only.
2. The petitioner/plaintiff filed two applications, one for
correction of judgment and decree under Sections 151, 152 and
153 of the Code of Civil Procedure and another for impleadment
of Ismail Pilla on the ground that it was Ismail Pilla who was
intended to be sued and not Kassim Kunju who was father of
Ismail Pilla. These applications were dismissed by the learned
Subordinate Judge giving liberty to the petitioner to pursue
appropriate other remedies. Accordingly, the present
applications I.A. No.369/02 and I.A. No.370/02 were filed
subsequently. The learned Subordinate Judge has dismissed the
applications mainly on the reason that allowing the application
will necessitate cancellation of the ex parte decree passed
against Kassim Kunju and that the same cannot be done on an
application filed by the plaintiff since the provisions of Order 9
Rule 13 applies only to applications submitted by the defendants.
The learned Subordinate Judge also observed that it will not be
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fair to allow the amendment so as to make the judgment and
decree binding on the 1st respondent since the summons was
admittedly not served on him directly. In other words, the
learned Subordinate Judge was worried that granting of the
amendment application will result in denying opportunity to the
respondent to contest the suit.
3. It has been repeatedly held by the Supreme Court that
when interests of technicalities and those of substantial justice
are putted against each other, the court shall strive to advance
the interests of substantial justice. It is crystal clear and the
learned Subordinate Judge also practically agrees that the party
whom the petitioner wanted to sue was Ismail Pillai and that the
name of Kassim Kunju, S/o. Ismail Pillai, the father of the
present respondent was shown in the plaint by mistake. I find on
a reading of Ext.P2 plaint that though the names of the son and
father were written wrongly, the age of the respondent, which is
given against the name of the 1st defendant in the suit, and the
averments in Ext.P2 will show that the cause of action
upon which the the suit is instituted is a transaction which took
place in Abu Dhabi where the petitioner and the respondent
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4
were working together. The documents which were produced
along with the plaint particularly the sworn affidavit relied on as
Item No.1 in the plaint is an affidavit sworn to by the
respondent, who was at that time working in Abu Dhabi. I am
convinced that the impleadment of Kassim Kunju instead of
Ismail Pilla as the 1st defendant in the suit is the result of a
mistake for which the draftsman of the plaint is to be blamed
more than the plaintiff himself. Learned Subordinate Judge also
discernibly thought that interest of justice demands grant of the
applications. The learned Subordinate Judge has certainly
viewed that it is not right to deny an opportunity to the
respondent to resist the suit. That view is certainly a correct one.
4. Having considered the totality of the circumstances
attending on this case, I feel that the extra-ordinary visitorial
jurisdiction under Article 227 must be invoked in this case so as
to advance the cause of rendering substantial justice between
the parties.
5. Accordingly, I set aside the decree passed against the
1st defendant in Ext.P2 plaint. Even otherwise the decree
passed against Kassim Kunju, a deceased person is a nullity and
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could be ignored. I.A No.369/2002 and I.A No.370/2002 will
stand allowed. The suit O.S. No.24/1998 will be re-posted by
the learned Subordinate Judge, who after ensuring that
necessary corrections are made, will issue fresh summons to the
1st defendant therein. It is not necessary to issue notice to the
2nd defendant. The 1st defendant upon receiving summons will
be entitled to file written statement raising all available
contentions. This court will not be justified in awarding costs to
the respondent. But the inconvenience caused to the court on
account of the carelessness in the drafting of the plaint is to be
taken note of. Noticing the said inconvenience, I make the above
orders conditional upon the petitioner paying an amount of
Rs.3,000/- to the credit of High Court Legal Services Committee,
within a period of three weeks from today, failing which
payment, the writ petition will stand dismissed.
This writ petition is conditionally allowed as above.
Sd/-
(PIUS C. KURIAKOSE, JUDGE)
ma
/True copy/
P.A. to Judge
WP ( C ) NO. 534 of 2004
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K.THANKAPPAN,J
CRL.A. NO.92 OF 1999
WP ( C ) NO. 534 of 2004
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ORDER
25th May, 2007