Against The Order/Judgment In Os ... vs By Adv. Sri.K.Rakesh
2021 Latest Caselaw 1215 Ker

OP(C).No.1245 OF 2020

                                     1

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

                  THE HONOURABLE MR.JUSTICE C.S.DIAS

  WEDNESDAY, THE 13TH DAY OF JANUARY 2021 / 23TH POUSHA, 1942

                         OP(C).No.1245 OF 2020

AGAINST THE ORDER/JUDGMENT IN OS 33/2016 OF SUB COURT, MANJERI


PETITIONER/REVIEW PETITIONER/PLAINTIFF

             ABDUNASAR,
             AGED 55 YEARS
             S/O. MARAKKAR, PACHEERI HOUSE, PERINTHALMANNA P.O.
             KAKKUTH, MALAPPURAM DISTRICT.

             BY ADV. SRI.K.RAKESH

RESPONDENT/RESPONDENT/DEFENDANT:

             ASEES
             AGED 56 YEARS
             S/O. AALI, THOTTOLI HOUSE, PERINTHALMANNA P.O.
             MALAPPURAM DISTRICT 679 322.

             R1   BY   ADV.   SRI.PUSHPARAJAN KODOTH
             R1   BY   ADV.   SRI.K.JAYESH MOHANKUMAR
             R1   BY   ADV.   SMT.VANDANA MENON
             R1   BY   ADV.   SRI.VIMAL VIJAY
             R1   BY   ADV.   SHRI.RESHMA T.R.

     THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 13.01.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(C).No.1245 OF 2020

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                          JUDGMENT

The Original Petition is filed under Article 227 of the

Constitution of India to set aside Ext.P5 order passed by

the Court of the Subordinate Judge, Manjeri, (Trial Court).

2. The concise case of the petitioner in the original

petition is that he is the plaintiff in O.S 33/2016 (Ext.P1), on

the file of the Trial Court, filed against the respondent for a

decree for return of money to the tune of Rs.65 lakh with

interest.

3. The Trial Court by its order dated 13.12.2016

rejected the plaint for non-payment of court fee. The

petitioner had filed I.A No.190/2019 (Review Petition

No.190/2019) (Ext.P3) to review the judgment and decree

dated 13.12.2016 and I.A No.189/2019 (Ext.P2) to condone

the delay.

4. The respondent opposed Exts.P2 and P3

applications by filing Ext.P4 written objection. OP(C).No.1245 OF 2020

5. The Trial Court by Ext.P5 common order dismissed

Exts.P2 and P3.

6. Aggrieved by Ext.P5 common order, the petitioner

has approached this Court.

7. The respondent has filed a counter affidavit in the

original petition, inter alia, contending that the petitioner

ought to have filed an appeal against the order dismissing

Ext.P3 application and not a review petition. It was

categorically pleaded in Ext.P4 written objection that the

petitioner has not stated sufficient cause to condone the

delay in filing Ext.P3 review petition. The reason stated for

non-payment of court fee is insufficient. The petitioner

ought to have sought exemption from payment of court fee,

if he was in financial distress. The reason assigned by the

petitioner cannot be accepted. The petitioner himself has

admitted in Ext.P3, that there is no error apparent on the

face of record, which is mandatory requirement to review a

judgment. In the absence of such a material averment, the OP(C).No.1245 OF 2020

application is only to be dismissed. Moreover, the petitioner

had not filed an application to condone the delay in filing the

review petition. A reading of Ext.P2 would show that the

application was only to condone the delay in accepting the

court fee. Hence the original petition may be dismissed.

8. Heard Sri.Rakesh.K, the learned counsel appearing

for the petitioner and Sri. K.Jayesh Mohankumar appearing

for the respondent.

9. The learned counsel appearing for the petitioner

argued that the Trial Court below ought to have taken a

lenient view in the matter, especially since the petitioner had

deposited the balance court fee along with Exts.P2 and P3

applications. Instead, the court has adopted a pedantic

approach by dismissing the applications on hyper

technical grounds, which is erroneous and unjustifiable. He

also contended that the suit is filed for return of a

substantial amount of Rs.65 lakh. Therefore, the Trial

Court ought to have granted the petitioner an opportunity to OP(C).No.1245 OF 2020

contest the case on merits, instead of foreclosing the

petitioner's right on technicalities/default.

10. The learned counsel appearing for the respondent

vehementally opposed the original petition. He contended

that the petitioner ought to have filed an application to

condone the delay in filing the review petition. A reading of

Ext.P2 would establish that the application was filed only to

condone the delay in payment of court fee, which is

insufficient. Similarly, the petitioner ought to have

challenged the original judgment and decree by way of an

appeal instead of a review petition. At any rate, there is an

inordinate delay of 1098 days in filing the review petition.

The applications have been rightly rejected by the Trial

Court by Ext.P5 order. There is no circumstance

warranting interference by this Court in exercise of the its

supervisory jurisdiction.

11. The sole question that emerges for consideration in

this original petition is whether Ext.P5 order passed by the OP(C).No.1245 OF 2020

court below, in rejecting the review petition and the delay

petition, is justifiable or not.

12. It is on record that the petitioner had filed Ext.P3

application to review the judgment and decree passed by the

Trial Court in rejecting the plaint for non-payment of court

fee. The petitioner had contended that he was not in a

position to pay the balance court fee due to the

demonetization that took place in the country. He sought for

enlargement of time to remit the balance court fee, which

he paid along with Exts.P3 and P2 applications. Ext.P2

application is seen filed in the review petition on the very

same day that Ext.P3 was filed. The application has been

filed seeking to condone the delay of 1098 days for

payment of the balance court fee. As Ext.P2 has been filed

in Ext.P3 application, it is only to be inferred and

interpreted that the petitioner had filed the application to

condone the delay in filing Ext.P3 review petition. At any

rate, the court below, without considering this aspect, OP(C).No.1245 OF 2020

rejected Exts.P2 and P3 by Ext.P5 order. Therefore, the

argument of the learned counsel appearing for the

respondent that the court below had to first consider the

delay petition before considering the review petition is

inconsequential and irrelevant, because the court below had

rejected both the applications.

13. The Hon'ble Supreme Court while dealing with

applications to condone the delay, in Collector, Land

Acquisition, Anantnag & Anr v. Katiji & Ors [(1987) 2

SCC 107], held that the expression 'sufficient cause' has to

be adequately elastic to enable the courts to apply the law

in a meaningful manner which sub-serves the ends of

justice, and that a liberal approach has to be adopted while

dealing with applications for condonation of delay.

14. The Hon'ble Supreme Court in Oriental Aroma

Chemical Industries Ltd v. Gujarat Industrial

Development Corporation and Another [ (2010) 5 SCC

459] has reiterated the legal position in Collector, Land OP(C).No.1245 OF 2020

Acquisition, Anantnag & Anr (supra) that the Court

should adopt a liberal approach in condoning the delay of

short duration and a stricter approach where the delay is

inordinate.

15. Therefore, it is by now trite that a case has to be

decided on merits, after giving the parties an opportunity of

being heard, rather than dismissing the same on

technicalities or default However, a stricter approach has to

be adopted when the delay is inordinate.

16. It was the specific case of the petitioner in Ext.P2

application that he could not remit the balance court fee

within the stipulated statutory time limit because his

business was affected due to the demonetization. Similarly,

he was laid up and was under treatment due to severe back

pain. It was in the said circumstances that a delay 1098

days had occurred in filing Ext.P3 review application.

17. The Trial Court, after considering the pleadings

and Ext.P4 written objection, by the impugned order, held OP(C).No.1245 OF 2020

that the petitioner had not produced any material before the

Trial Court to substantiate that the petitioner's business

was affected due to demonetization and that he was laid up

due to back pain. Accordingly, the Trial Court rejected

Exts.P2 and P3 applications by Ext.P5.

18. Going by the law laid down in Collector, Land

Acquisition, Anantnag & Anr and Oriental Aroma

Chemical Industries Ltd (supra), I am of the considered

opinion that even though there is a delay of 1098 days in

filing the review petition, the Trial Court ought to have

taken a liberal approach and lenient view in matter to sub-

serve the ends of justice, instead of seeking for hairsplitting

materials. The hardship and inconvenience caused to the

respondent can be compensated by directing the petitioner

to pay reasonable costs to tide over such hardship,

otherwise severe prejudice and injustice would be caused to

the petitioner, who has instituted Ext.P1 for realisation of a

substantial amount of Rs.65 lakh. If Ext.P1 is rejected at the OP(C).No.1245 OF 2020

threshold, due to the default, and not decided on merits, I

am of the firm opinion that it would cause severe prejudice

and hardship to the petitioner.

19. On an over-all appreciation of the rival pleadings

and the law laid down by the Hon'ble Supreme Court and in

view of my findings above, I am satisfied that the petitioner

has stated sufficient cause to condone the delay of 1098

days in filing Ext.P3 review petition. The petitioner has also

pleaded substantial grounds to review the judgment and

decree passed by the Trial Court in O.S 33/2016.

Moreover, the petitioner has remitted the balance court fee,

with Exts.P2 and P3 applications. Therefore, I am of the

definite opinion that the petitioner has to be given one more

opportunity to contest Ext.P1 suit on its merits.

In the result, in exercise of the supervisory

jurisdiction of this Court under Article 227 of the

Constitution of India, I allow this original petition on the

following conditions.

OP(C).No.1245 OF 2020

(i) The petitioners shall deposit/pay an amount of Rs.25,000/- (Rupees Twenty five thousand only) as costs to the respondent/learned counsel appearing for the respondent before this Court, within a period of three weeks from today, and file a memo to the effect along with the judgment before the Trial Court.

(ii) If the memo is filed within the prescribed time period, Ext.P5 common order would stand set aside and Exts.P2 and P3 would stand allowed and O.S 33/2016 of the Court of the Subordinate Judge, Manjeri would stand restored.

(iii) On restoration of O.S 336/2016, the Trial Court shall give the petitioner and respondent adequate opportunity to adduce and produce evidence, as may be required to prove their respective case.

(iv) Considering the fact that the suit is of the year 2016, I direct the Trial Court to dispose of the suit, in accordance with law, as expeditiously as possible.

ma/14.1.2021                                Sd/-   C.S.DIAS, JUDGE
                              /True copy/
 OP(C).No.1245 OF 2020



                            APPENDIX
PETITIONER'S/S EXHIBITS:

EXHIBIT P1              TRUE COPY OF THE PLAINT IN O.S. NO. 33/2016

OF THE SUBORDINATE COURT, MANJERI DATED 1.6.2016.

EXHIBIT P2 TRUE COPY OF THE INTERLOCUTORY APPLICATION FILED AS I.A. NO. 189/2019 IN O.S. NO.

33/2016 BEFORE THE SUB COURT, MAJERI, DATED 7.2.2019.

EXHIBIT P3 TRUE COPY OF THE I.A. (REVIEW PETITION) NO.

190/2019 IN O.S. NO. 33/2016 BEFORE THE SUB COURT, MANJERI DATED, 7.2.2019

EXHIBIT P4 TRUE COPY OF THE OBJECTION FIELD BY THE RESPONDENT TO EXHIBIT P2 AND P3 DATED 22.7.2019.

EXHIBIT P5 TRUE COPY OF THE COMMON ORDER DATED 10.3.2020 IN I.A. NO. 189/201 AND R.P. NO. 190/2019 IN OS. NO. 33/2016 OF THE SUBORDINATE COURT, MANJERI.