IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 1ST DAY OF JUNE 2022 / 11TH JYAISHTA, 1944
OP(C) NO. 854 OF 2022
(ORDER DATED 17.03.2022 IN I.A.NOs.3/2021 & 4/2021 IN R.P
O.S.NO.58/2016 OF SUBORDINATE JUDGE'S COURT, PUNALUR
PETITIONER/PETITIONER/PLAINTIFF:
JAYALAL,
AGED 56 YEARS,
JAYALAL, S/O NADESAN, RESIDING AT VISHNU VIHAR,
ANCHAL P.O, PUNALUR TALUK, KOLLAM DISTRICT, PIN
- 691306
BY ADVS.
S.SREEJITH (S-3453)
ASHA JYOTHY
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 SUGHESH, AGED 42 YEARS, S/O DHARMAPUTHRAN
PILLAI, VEMBANATTU VEEDU, MANIYAR P.O, PUNALUR
TALUK, KOLLAM DISTRICT, PIN - 691333.
2 DHARMAPUTHRAN PILLAI,
AGED 64 YEARS, VEMBANATTU VEEDU, MANIYAR P.O,
PUNALUR TALUK, KOLLAM DISTRICT, PIN - 691333.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
24.05.2022, THE COURT ON 01.06.2022 DELIVERED THE
FOLLOWING:
O.P.(C)No.854 of 2022
2
A.BADHARUDEEN, J.
===========================
O.P.(C)No.854 of 2022
============================
Dated this the 1st day of June, 2022
JUDGMENT
This is an Original petition filed under Article 227 of the Constitution of India challenging Exts.P11 and P12 orders passed by the Sub Judge, Punalur dated 17.03.2022. The petitioner herein is the plaintiff/ petitioner before the trail court. Respondents herein are the defendants/respondents before the trial court.
2. Heard the matter on admission.
3. The petitioner herein filed O.S.No.58/2016 for realisation of Rs.20,91,600/- with interest @ 12% per annum from defendant No.1 and from his assets. The 2nd defendant filed written statement and raised counter claim, claiming Rs.6,35,000/ from the plaintiff. When the case was posted for O.P.(C)No.854 of 2022 3 payment of balance court fee on 12/04/2017, the plaintiff/petitioner herein failed to remit the balance court fee and the plaint was rejected. Thereafter, on 5.6.2017, the counter claim was considered and the same was decreed exparte.
4. After rejection of the plaint on 12.04.2017 and after suffering counter claim decree on 5.6.2017, the petitioner herein continued silence till 20.09.2021. On 20.09.2021, I.A.No.3/2021 was filed to review the order of rejection of plaint dated 12.04.2017 along with I.A.No.4/2021 to condone the delay of 1071 days in filing the Review Petition.
5. The defendants filed objection and opposed both the applications.
6. The learned Sub Judge addressed the contention raised by the petitioner in the matter of condonation of delay within the ambit of 'sufficient cause' as dealt under Section 5 of the Limitation Act. Finally, the learned Sub Judge found that O.P.(C)No.854 of 2022 4 sufficient cause for condoning the long delay of 1037 days is not established, after holding that the delay was not 1071 days. The relevant observation in para. 12 is as under:
"12. According to the petitioner, his counsel had not informed the rejection of the plaint and ex- parte decree and he came to understand the decree and rejection of the plaint only on 15.03.2020, ie., the date on which he obtained notice in the execution petition No 04/2020. That itself shows the petitioner was not vigilant in prosecuting or defending the case. The petitioner being a prudent man, should have made enquiry about his case without waiting communication from his counsel. More over due to the implementation of CIS etc., the petitioner or any other litigant could understand the hearing date, purpose of the posting etc., of his case, without depending on his counsel or any other person. There is nothing on record to show that there was sufficient cause for the delay in filing the application."
7. While assailing the impugned orders, the learned counsel for the petitioner submitted that an opportunity may be given to the plaintiff/petitioner to pay the balance court fee and O.P.(C)No.854 of 2022 5 to contest the Suit. However, the learned counsel miserably failed to substantiate 'sufficient cause' for condoning the long delay. I have perused the affidavit in support of I.A.No.4/2021. The averments stated in the affidavit in support of I.A.No.4/2021 is that the petitioner's wife was under treatment for her various ailments and she was undergoing treatment for rheumatism from 2015 onwards. Further, the petitioner also was on treatment at Aster Medicity Hospital from 11.04.2019 onwards. It appears that treatment of the petitioner and his wife in a vague manner is the way in which the long delay sought to be explained. Regarding treatment of the petitioner as well as his wife, no evidence adduced before the trial court while canvassing condonation of long delay of 1071 days.
8. Going by the impugned order, it is emphatically evident that the petitioner miserably failed to substantiate 'sufficient cause' to condone the delay in the matter of reviewing O.P.(C)No.854 of 2022 6 the order rejecting the plaint, in a case, where he failed to pay Rs.1,67,150/- (1,85,750-18,600) as court fee to prosecute the Original Suit and in case involving decree of claim passed on 05.06.2017. Since Ext.P12 application for condonation of delay was dismissed, Ext.P11 petition also is dismissed holding the same as barred by limitation by the court below. I could not find any illegality in the orders impugned or any bonafides on the part of the petitioner in prosecuting the Suit. As such I am not inclined to interfere with the orders impugned.
Accordingly, this Original Petition stands dismissed.
Sd/-
(A.BADHARUDEEN, JUDGE) rtr/ O.P.(C)No.854 of 2022 7 APPENDIX OF OP(C) 854/2022 PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE PLAINT IN O.S NO.
58/16 BEFORE THE SUBORDINATE JUDGES COURT, PUNALUR.
Exhibit P2 A TRUE COPY OF THE WRITTEN STATEMENT WITH COUNTERCLAIM FILED BY THE RESPONDENTS IN O.S NO.58/2016 ON THE FILES OF THE SUBORDINATE JUDGES COURT, PUNALUR.
ExhibitP3 A TRUE COPY OF THE JUDGMENT DATED 05.06.2017 IN O.S NO. 58/16 ON THE FILE OF THE SUBORDINATE JUDGES COURT, PUNALUR.
Exhibit P4 A TRUE COPY OF THE PRESCRIPTIONS DATED 5.12.2015 AND 14.5.2016 ISSUED FROM THE GOVERNMENT AYURVEDA HOSPITAL, THIRUVANATHAPURAM.
Exhibit P5 A TRUE COPY OF THE PRESCRIPTION AND INVOICE DATED 02.05.2019 ISSUED FROM ASTER MEDICITY, ERNAKULAM.
Exhibit P6 A TRUE COPY OF THE BILL DATED 11.04.2019 ISSUED FROM ASTER MEDICITY, ERNAKULAM.
Exhibit P7 A TRUE COPY OF THE PETITION IN I.A NO.2/2020 IN IN R.P O.S NO.58/16 ON THE FILE OF THE SUBORDINATE JUDGES COURT, PUNALUR.
Exhibit P8 A TRUE COPY OF THE PETITION IN I.A NO.3/21 IN R.P O.S NO. 58/16 ON THE FILE OF THE SUBORDINATE JUDGES COURT, PUNALUR.
O.P.(C)No.854 of 2022 8 Exhibit P9 A TRUE COPY OF THE PETITION IN I.A NO.4/21 IN R.P O.S NO.58/16 ON THE FILE OF THE SUBORDINATE JUDGES COURT, PUNALUR.
Exhibit P10 A TRUE COPY OF THE OBJECTION DATED 03.09.2021 FILED BY THE RESPONDENTS. Exhibit P11 A TRUE COPY OF THE ORDER DATED 17.03.2022 IN REVIEW PETITION NO.
3/2021 IN R.P O.S NO. 58/2016 BEFORE
THE SUBORDINATE JUDGE'S COURT,
PUNALUR.
Exhibit P12 A TRUE COPY OF THE ORDER DATED
17.03.2022 IN I.A NO.4/2021 IN R.P O.S NO. 58/2016 BEFORE THE SUBORDINATE JUDGE'S COURT, PUNALUR.