M.A.Shaik Hussain vs M.Muhammed Jamal
2021 Latest Caselaw 20733 Ker

Citation : 2021 Latest Caselaw 20733 Ker
Judgement Date : 5 October, 2021

Kerala High Court

M.A.Shaik Hussain vs M.Muhammed Jamal on 5 October, 2021

 OP(C).725/21                       1

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                   THE HONOURABLE MR.JUSTICE V.G.ARUN
     TUESDAY, THE 5TH DAY OF OCTOBER 2021 / 13TH ASWINA, 1943
                         OP(C) NO. 725 OF 2021
  AGAINST THE ORDER/JUDGMENT IN OS 3/2016 OF II ADDITIONAL SUB
                       COURT,ERNAKULAM, ERNAKULAM
PETITIONER/S:

            M.A.SHAIK HUSSAIN
            AGED 57 YEARS
            S/O ABDUL AZEEZ,
            VELLAKKADA PARAMBIL,
            48/719, KOUSALLIYA NAGAR, ELAMAKKARA P.O,
            ERNAKULAM

            BY ADV T.M.ABDUL LATHEEF



RESPONDENT/S:

            M.MUHAMMED JAMAL
            AGED 61 YEARS
            S/O MALAKK RAWTHER,
            CC35/499, MUKKARAYIL HOUSE, PALARIVATTOM P.O,
            ERNAKULAM-682025.


     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05.10.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
  OP(C).725/21                            2




                                  V.G.ARUN, J.
                   -----------------------------------------------
                           O.P(C).No. 725 of 2021
                   -----------------------------------------------
                 Dated this the 5th day of October, 2021

                                  JUDGMENT

The petitioner was the plaintiff in O.S.No.3 of 2016 of the

Subordinate Judge's Court, Ernakulam. The suit was originally filed for

mandatory injunction, directing the respondent to execute a sale deed

in respect of the plaint schedule property after receiving the balance

sale consideration. The plaint was later amended by incorporating an

alternative prayer to allow the petitioner to recover the amount of Rs.15

lakhs paid towards advance sale consideration. On 19.9.2018, the suit

was posted for hearing on a preliminary issue. Since there was no

representation for the plaintiff, the suit was dismissed for default. The

petitioner filed I.A.No.3882 of 2018 for restoring the suit, but that

application was dismissed on 20.8.2019 for non-representation.

Thereupon, the petitioner filed I.A.No.1373 of 2019 for restoring

I.A.No.3882 of 2018 along with I.A.No.1374 of 2019 for condoning the

delay in filing the restoration application. Those applications were

dismissed for failure to take steps for issuance of notice to the

respondent. Undaunted, the petitioner filed I.A.No.2974 of 2019 for

restoring the earlier interlocutory applications. The trial court dismissed

that application upon which the petitioner filed I.A.No.3218 of 2019,

which was dismissed by Exhibit P4 order. Hence, this original petition.

2. Learned counsel for the petitioner submitted that the suit

happened to be dismissed for default due to a bona fide mistake in

noting the posting date. The same mistake occurred in noting the dates

on which the restoration petitions were posted. It is submitted that the

mistake is not attributable to the party and had occurred due to the lack

of experience of a junior Clerk attached to the counsel's office. It is

contended that the filing of repeated applications for restoration itself is

proof of the serious manner in which the petitioner is prosecuting the

case. On the merits of the suit it is submitted that, having advanced an

amount of Rs.15 lakhs to the respondent, the petitioner will be put to

undue prejudice and loss if the suit is not restored to file and decided on

merits. Reliance is placed on the decision of the Honourable Supreme

Court in Robin Thapa v. Rohit Dora [(2019) 7 SCC 359] to contend

that ordinarily no litigation should be terminated by default.

3. Despite service of notice, there is no appearance for the

respondent.

4. The sequence of events, commencing from the dismissal of the

suit for default and culminating in the impugned order, reflects the

indifferent manner in which the suit was being contested. The learned

Counsel fairly admitted that the mistake had occurred at his office and

is not attributable to the party. The relief sought in the suit is for specific

performance of an agreement or in the alternative, to direct return of

the advance amount of Rs.15 lakhs. The question is whether the

petitioner should be non-suited for reasons which are not attributable to

him. In this context, the following paragraph in Robin Thapa (supra)

assumes relevance.

"8. Ordinarily, a litigation is based on adjudication on the

merits of the contentions of the parties. Litigation should not be

terminated by default, either of the plaintiff or the defendant.

The cause of justice does require that as far as possible,

adjudication be done on merits."

5. in the light of the dictum laid down in Robin Thapa (supra), I

am inclined to allow the prayer for restoration of the suit, subject to

payment of compensation to the respondent.

In the result, the original petition is allowed. Exhibit P4 order is set

aside. O.S.No.3 of 2016 is restored to the files of the Subordinate

Judge's Court, Ernakulam subject to the petitioner remitting an amount

of Rs.20,000/- (rupees twenty thousand only) towards cost before the

trial court within one month. The amount deposited towards

compensation shall be disbursed to the respondent, on submission of

appropriate application. The court below shall take earnest efforts to

dispose of the suit within six months of appearance of the respondent.

The interim order restraining alienation of the property shall continue to