Sulochana Balakrishnan vs Ramaswamy
2021 Latest Caselaw 3146 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

             THE HONOURABLE MR. JUSTICE A.HARIPRASAD

                                   &

             THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

     THURSDAY, THE 28TH DAY OF JANUARY 2021 / 8TH MAGHA, 1942

                           FAO.No.58 OF 2019

   AGAINST THE COMMON ORDER IN I.A.692/2017 AND I.A.693/17 IN OS
  399/2013 DATED 09-08-2017 ON THE FILE OF ADDITIONAL SUB COURT,
                             PALAKKAD


APPELLANTS/APPELLANTS:

      1      SULOCHANA BALAKRISHNAN
             D/O. LATE. LAKSHMANA IYER, AGED 74, N22, RH4, SECTOR
             7, VASHI, NAVI MUMBAI - 400 703 (WRONGLY STATED IN
             ORDER AS 400 464)

      2      K. DIVAKARAN
             S/O. LATE. LAKSHMANA IYER, AGED 76, VIVEK CO-OP.
             HOUSING SOCIETY, (WRONGLY STATED IN ORDER AS VINOD
             APARTMENTS) 2ND FLOOR, SECTOR 9A, VASHI, MUMBAI - 400
             703

             BY ADVS.
             SRI.R.HARISHANKAR
             SMT.PARVATHY NAIR

RESPONDENTS/RESPONDENTS:

      1      RAMASWAMY,
             S/O. LATE. LAKSHMANA IYER, NEW STREET, NOORANI,
             PALAKKAD - 678 004

      2      RAMASWAMY
             S/O. LATE RAMASESHAN (WRONGLY STATED IN ORDER AS S/O.
             LATE. LAKSHMANA IYER), NEW STREET, NOORANI, PALAKKAD
             - 678 004

      3      SUMATHI
             W/O. LATE. K. HARIDASAN, C/312, SITAR, (WRONGLY
             STATED IN ORDER AS C312, SISTAR) LOKPURAM, OFF POKRAN
             ROAD, THANA (WEST) - 400061 (WRONGLY STATED IN ORDER
             AS TANA AND 4000061)

      4      SMITHA SURESH MENON,
 FAO.No.58 OF 2019                       2

              D/O. LATE.K. HARIDASAN, AWING -8001, OPG TOWERS,
              PLOT NO.1, SECTOR 2, SANPADA,NAVI MUMBAI - 400 705

       5      SEEMA HARIDAS
              D/O. LATE. K. HARIDASAN, C/312, SITAR, (WRONGLY
              STATED IN ORDER AS C312, SISTAR), LOKPURAM, OFF
              POKRAN ROAD, THANA (WEST) - 400061 (WRONGLY STATED
              IN ORDER AS TANA AND 4000061)

              R1-2   BY   ADV.   SRI.S.SREEKUMAR (SR.)
              R1-2   BY   ADV.   SRI.P.MARTIN JOSE
              R1-2   BY   ADV.   SRI.P.PRIJITH
              R1-2   BY   ADV.   SRI.THOMAS P.KURUVILLA

     THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON
28.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 FAO.No.58 OF 2019                            3


          Dated this the 28th day of January, 2021

                                       JUDGMENT

A.Hariprasad,J.

Heard the learned counsel for appellants and

the learned senior counsel appearing for

respondents. Aggrieved by a common order passed

by the Addl. Sub Judge, Palakkad on IA

Nos.692/2017 & 693/2017 in O.S.No.399 of 2013

the plaintiffs are before this Court in appeal.

2. The appellants filed a suit for

partition before the trial court. When the

matter was posted for taking steps, the

plaintiffs failed to appear before the court and

also to take steps. Hence the suit was

dismissed. With a delay of 80 days, the

plaintiffs approached the trial court with two

applications; one for restoring the suit and the

other to condone delay in filing the restoration

application. Both applications were dismissed by

the common order finding mainly that the party

himself did not swear to an affidavit, instead

the erstwhile lawyer has sworn to the affidavit.

Moreover, the court below found that there was

no sufficient cause shown for condoning the

delay.

3. Learned senior counsel contended that

the Civil Rules of Practice insists that the

party should file an affidavit in interlocutory

applications and the erstwhile lawyer is

incompetent to swear to on behalf of the

parties. It is true, ideally the party should

have shown sufficient cause for condoning the

delay. Learned counsel for the appellants

pointed out that this is a case where the party

has grievance against the erstwhile lawyer for

not prosecuting the matter properly. That is

one of the reasons why he himself filed an

affidavit. It is understood from the contentions

raised by both sides that there are serious

issues to be tried and decided in the suit.

Having regard to the fundamental principle that

a meritorious matter shall not be thrown out at

the threshold, we are inclined to allow the

appeal and set aside the order passed by the

court below in the aforementioned interlocutory

applications.

In the result, this appeal is allowed. The

impugned common orders are hereby set aside. The

court below is directed to proceed with the

matter and decide the case in accordance with

law. The parties shall appear before the court

below on 22.2.2021.

sd/-

A.HARIPRASAD, JUDGE

sd/-

T.V.ANILKUMAR, JUDGE pm