V.J.Joy vs Usha Kumari
2021 Latest Caselaw 367 Ker

Citation : 2021 Latest Caselaw 367 Ker
Judgement Date : 6 January, 2021

Kerala High Court

V.J.Joy vs Usha Kumari on 6 January, 2021

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

             THE HONOURABLE MR. JUSTICE SATHISH NINAN

   WEDNESDAY, THE 06TH DAY OF JANUARY 2021 / 16TH POUSHA, 1942

                         CRP.No.2 OF 2021

   AGAINST THE ORDER/JUDGMENT IN OS 1952/2003 OF III ADDITIONAL
                   MUNSIFF'S COURT ,TRIVANDRUM


REVISION PETITIONERS / COUNTER PETITIONERS / DEFENDANTS:

      1      V.J.JOY
             AGED 68 YEARS
             S/O. P.V.JOHN, 6/584-4, ANUPAMA NAGAR, PONGUMMOODU,
             THIRUVANANATHAPURAM

      2      BEENA JOY,
             W/O. V.J.JOY,6/584-4, ANUPAMA NAGAR, PONGUMMOODU,
             THIRUVANANATHAPURAM

             BY ADV. SRI.G.S.REGHUNATH

RESPONDENTS / PETITIONERS/ PLAINTIFFS:

      1      USHA KUMARI
             MOHANA VILASOM, PONGUMMOODU, MEDICAL COLLEGE
             P.O.,THIRUVANANTHAPURAM, 695011 REPRESENTED BY POWER
             OF ATTORNEY HOLDER, S.MOHANACHANDRAN NAIR

      2      S.MOHANACHANDRAN NAIR,
             AGED 55 YEARS
             S/O. SAROJINI AMMA,MOHANA VILASOM, PONGUMMOODU,
             CHERUVACKAL VILLAGE, MEDICAL COLLEGE
             P.O.,THIRUVANANTHAPURAM. 695 011


     THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON
06.01.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
                                       2
CRP.No.2 OF 2021




                              ORDER

An order, restoring a suit that was dismissed for

default, is under challenge in this civil revision petition by

the defendants.

2. The suit is of the year 2003. The suit was

originally decreed by the trial court. The decree was

confirmed in first appeal. However, the decree and

judgment was interfered with by this Court in

R.S.A.No.646/2011 and the suit was remanded back to trial

court for fresh disposal. Liberty was granted to the parties

to adduce further evidence. The plaintiffs challenged the

order of remand before the Apex Court but was not

successful. Pursuant to the order of remand, the trial court

posted the case on several occasions from 23/07/2014 till

14/07/2015 on which date, since there was no

representation on behalf of the plaintiffs, the suit was

dismissed for default. The plaintiffs moved a restoration

application on 10/08/2015 which was allowed by the court

below.

CRP.No.2 OF 2021

3. Sri.G.S.Raghunath, the learned counsel for the

petitioners - defendants contend that at least 12 postings

were given by the trial court subsequent to remand and

that the attempt of the plaintiffs is only to protract the

proceedings. He also contends that the plaintiffs are not

interested in the proceedings since she had already

transferred the property. He contends that there is no

bonafide on the part of the respondents - plaintiffs.

4. As noticed supra, challenging the judgment in

R.S.A.No.646/2011 of this Court, the plaintiffs had

approached the Apex Court. The Special Leave Petition

was dismissed on 06/01/2015. There were some factual

mistakes that had crept in the judgment of this Court in

R.S.A.No.646/2011, which was sought to be corrected by

filing R.P.No.222/2015. The correction was ordered on

06/07/2015. The postings of the case before the trial court

was pending such proceedings. As regards the non-

representation of the plaintiffs on 14/07/2015, the

advocate who was appearing on behalf of the plaintiffs has

sworn to an affidavit that he had instructed another

counsel to represent him on that day and that there was

an omission on his part. The relevant portion of the said

CRP.No.2 OF 2021

affidavit reads thus:

"3. On 14-07-2015 I had instructed Advocate

Sri.Haridev, who was present before the Hon'ble

Court on that day, to represent me in my absence.

However, the said Advocate Sri.Haridev had omitted

to make the representation when the case was

called. He was misled because the name of the

counsel was wrongly called as Advocate Sri.Rajeev.

Later Sri.Haridev made enquiries and it was then

that he became aware of this mistake. He informed

this matter to me."

It is consequent to the above that there was no

representation for the plaintiffs and the suit happened to

be dismissed. The plaintiffs sought for restoration of the

suit within the period of limitation.

5. The trial court, on considering the entire facts,

was satisfied about the explanation given by the plaintiffs

for non-appearance and has exercised its discretion to

restore the suit. It cannot be said that the exercise of

discretion was perverse. The order impugned warrants no

interference. The CRP fails and is dismissed.

Considering the fact that the suit is of the year 2003,

every endeavor shall be made by the trial court to have