Sushama Narayanan Namboothiri vs Abraham Kurian
2021 Latest Caselaw 8542 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

             THE HONOURABLE MRS. JUSTICE MARY JOSEPH

     MONDAY, THE 15TH DAY OF MARCH 2021 / 24TH PHALGUNA, 1942

                        FAO.No.10 OF 2021

 AGAINST THE ORDER IN I.A NO.1505/2019 IN O.P(IND)No.219/2019 IN
       O.S No.141/2017 OF MUNSIFF'S COURT, CHANGANACHERRY


APPELLANTS/APPLICANTS/DEFENDANTS:

      1      SUSHAMA NARAYANAN NAMBOOTHIRI,
             AGED 60 YEARS,
             W/O. LATE C.P. NARAYANAN NAMBOOTHIRI,
             MANIKKOTHU HOUSE, VATTAPPALLY MADAM,
             VAZHAPPALLY EAST VILLAGE, CHANGANACHERRY TALUK,
             KOTTAYAM DISTRICT-686 101

      2      KRISHNADAS,
             AGED 35 YEARS,
             S/O. LATE C.P. NARAYANAN NAMBOOTHIRI,
             MANIKKOTHU HOUSE, VATTAPPALLY MADAM,
             VAZHAPPALLY EAST VILLAGE, CHANGANACHERRY TALUK,
             KOTTAYAM DISTRICT-686 101

      3      HARIDAS,
             AGED 31 YEARS,
             S/O. LATE C.P. NARAYANAN NAMBOOTHIRI,
             MANIKKOTHU HOUSE, VATTAPPALLY MADAM, VAZHAPPALLY EAST
             VILLAGE,
             CHANGANACHERRY TALUK,
             KOTTAYAM DISTRICT-686 101

             BY ADV. SRI.HARISH ABRAHAM

RESPONDENT/RESPONDENT/PLAINTIFF:

             ABRAHAM KURIAN,
             AGED 69 YEARS,
             KALLUPURAYIL HOUSE, NEDUNGADAPPALLY P.O,
             SANTHIPURAM KARA, KUNNAMTHANAM VILLAGE,
             MALLAPPALLY, PATHANAMTHITTA -686 545

             R1 BY ADVS. SRI.J.VISHNU
                         SMT.ANU BALAKRISHNAN NAMBIAR

     THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON
15.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 FAO.No.10 OF 2021                   2



                              JUDGMENT

Dated this the 15th day of March 2021

This appeal is directed against an order passed by Additional

District Court-IV Kottayam on 03.11.2020 in I.A No.1505 of 2019

in O.P(Ind) No.219 of 2019 in O.S No.141 of 2017 of Munsiff's

Court, Changancherry. Vide the impugned order, the court below

has dismissed the Interlocutory Application for the reason that

representation was not there for the counsel despite the posting of

the petition by the court for enquiry as last chance.

2. It is contended by the learned counsel for the

appellants that enquiry in the petition was primarily conducted by

the Chief Ministerial Officer and a Report was also filed.

Interlocutory Application was filed by the petitioners prior to

Covid-19 pandemic but due to the lockdown declared consequent

to that, it was adjourned indefinitely for objection of the

respondent and ultimately for consideration alongwith the suit.

On 03.11.2020, it was taken up and dismissed on the same day for

default. According to the learned counsel, there was no specific

directions from the court to the petitioners to be present on that

day.

3. It is further submitted that the counsel engaged by the

petitioners to represent them was unable to access online media

on account of some technical reasons. Thus, the petitioners were

left unrepresented. According to him the impugned order is silent

on the Report prepared by the Chief Ministerial Officer after

holding the preliminary inquiry on the claims of the petitioners.

According to him, there was no willful laches or negligence on the

part of the petitioners as well as their counsel in not attending the

case when called on 03.11.2020 and therefore, the impugned order

needs to be interfered with and set aside so as to enable him to

appear and adduce evidence to substantiate that he has no

sufficient means to pay the court fee in the suit.

4. The learned counsel for the respondent has contended

that, thrice the case was posted for adducing evidence but all those

three times, the petitioners were absent.

5. I.A No.1505 of 2019 was dismissed for default.

Undoubtedly the order is prejudicial to the petitioners. The suit

was for realisation of money and since the petitioners were unable

to pay the court fee that the petition was fled seeking permission

to sue as an indigent person. The impugned order only says that

neither the petitioners or their counsel appear on a day which was

particularly posted for adducing evidence as last chance. The

order is also silent about the number of postings given to the

petitioners for the purpose.

6. Since the purpose behind filing of the petition being

for getting exemption from payment of court fee, this court could

not see any reason for the petitioners to prolong the matter by

keeping away from attending the court willfully. Therefore, their

absence before the court on 03.11.2020 may be due to reasons

beyond their control. The counsel has also stated about his

inability on the day to represent the petitioners for failure of the

online facility due to some technical reasons. Moreover, the

impugned order was passed in a situation when Covid-19

pandemic was prevalent and restrictions were imposed on free

movement. Such being the context, the court below ought to have

granted yet another opportunity to the petitioners to adduce

evidence to establish their claim of indigence. This Court finds it

justified to set aside the order and to grant a single opportunity to

the petitioners to adduce evidence.

In the result, F.A.O is allowed. The impugned order is set

aside. The court below shall permit the petitioners to adduce

evidence relevant to establish their claim by granting a single

opportunity to them. The court below shall pass appropriate

orders in the application filed, within two weeks from the date of

receipt of a copy of this judgment.

Sd/-

MARY JOSEPH

JUDGE

JJ