Kerala High Court
Jayalal vs Sughesh on 1 June, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 1ST DAY OF JUNE 2022 / 11TH JYAISHTA, 1944
OP(C) NO. 854 OF 2022
(ORDER DATED 17.03.2022 IN I.A.NOs.3/2021 & 4/2021 IN R.P
O.S.NO.58/2016 OF SUBORDINATE JUDGE'S COURT, PUNALUR
PETITIONER/PETITIONER/PLAINTIFF:
JAYALAL,
AGED 56 YEARS,
JAYALAL, S/O NADESAN, RESIDING AT VISHNU VIHAR,
ANCHAL P.O, PUNALUR TALUK, KOLLAM DISTRICT, PIN
- 691306
BY ADVS.
S.SREEJITH (S-3453)
ASHA JYOTHY
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 SUGHESH, AGED 42 YEARS, S/O DHARMAPUTHRAN
PILLAI, VEMBANATTU VEEDU, MANIYAR P.O, PUNALUR
TALUK, KOLLAM DISTRICT, PIN - 691333.
2 DHARMAPUTHRAN PILLAI,
AGED 64 YEARS, VEMBANATTU VEEDU, MANIYAR P.O,
PUNALUR TALUK, KOLLAM DISTRICT, PIN - 691333.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
24.05.2022, THE COURT ON 01.06.2022 DELIVERED THE
FOLLOWING:
O.P.(C)No.854 of 2022
2
A.BADHARUDEEN, J.
===========================
O.P.(C)No.854 of 2022
============================
Dated this the 1st day of June, 2022
JUDGMENT
This is an Original petition filed under Article 227 of the
Constitution of India challenging Exts.P11 and P12 orders
passed by the Sub Judge, Punalur dated 17.03.2022. The
petitioner herein is the plaintiff/ petitioner before the trail court.
Respondents herein are the defendants/respondents before the
trial court.
2. Heard the matter on admission.
3. The petitioner herein filed O.S.No.58/2016 for
realisation of Rs.20,91,600/- with interest @ 12% per annum
from defendant No.1 and from his assets. The 2nd defendant
filed written statement and raised counter claim, claiming
Rs.6,35,000/ from the plaintiff. When the case was posted for
O.P.(C)No.854 of 2022
payment of balance court fee on 12/04/2017, the
plaintiff/petitioner herein failed to remit the balance court fee
and the plaint was rejected. Thereafter, on 5.6.2017, the counter
claim was considered and the same was decreed exparte.
4. After rejection of the plaint on 12.04.2017 and after
suffering counter claim decree on 5.6.2017, the petitioner herein
continued silence till 20.09.2021. On 20.09.2021, I.A.No.3/2021
was filed to review the order of rejection of plaint dated
12.04.2017 along with I.A.No.4/2021 to condone the delay of
1071 days in filing the Review Petition.
5. The defendants filed objection and opposed both the
applications.
6. The learned Sub Judge addressed the contention
raised by the petitioner in the matter of condonation of delay
within the ambit of 'sufficient cause' as dealt under Section 5 of
the Limitation Act. Finally, the learned Sub Judge found that
O.P.(C)No.854 of 2022
sufficient cause for condoning the long delay of 1037 days is not
established, after holding that the delay was not 1071 days. The
relevant observation in para. 12 is as under:
"12. According to the petitioner, his counsel
had not informed the rejection of the plaint and ex-
parte decree and he came to understand the decree and
rejection of the plaint only on 15.03.2020, ie., the date
on which he obtained notice in the execution petition
No 04/2020. That itself shows the petitioner was not
vigilant in prosecuting or defending the case. The
petitioner being a prudent man, should have made
enquiry about his case without waiting communication
from his counsel. More over due to the implementation
of CIS etc., the petitioner or any other litigant could
understand the hearing date, purpose of the posting
etc., of his case, without depending on his counsel or
any other person. There is nothing on record to show
that there was sufficient cause for the delay in filing the
application."
7. While assailing the impugned orders, the learned
counsel for the petitioner submitted that an opportunity may be
given to the plaintiff/petitioner to pay the balance court fee and
O.P.(C)No.854 of 2022
to contest the Suit. However, the learned counsel miserably
failed to substantiate 'sufficient cause' for condoning the long
delay. I have perused the affidavit in support of I.A.No.4/2021.
The averments stated in the affidavit in support of
I.A.No.4/2021 is that the petitioner's wife was under treatment
for her various ailments and she was undergoing treatment for
rheumatism from 2015 onwards. Further, the petitioner also was
on treatment at Aster Medicity Hospital from 11.04.2019
onwards. It appears that treatment of the petitioner and his wife
in a vague manner is the way in which the long delay sought to
be explained. Regarding treatment of the petitioner as well as
his wife, no evidence adduced before the trial court while
canvassing condonation of long delay of 1071 days.
8. Going by the impugned order, it is emphatically
evident that the petitioner miserably failed to substantiate
'sufficient cause' to condone the delay in the matter of reviewing
O.P.(C)No.854 of 2022
the order rejecting the plaint, in a case, where he failed to pay
Rs.1,67,150/- (1,85,750-18,600) as court fee to prosecute the
Original Suit and in case involving decree of claim passed on
05.06.2017. Since Ext.P12 application for condonation of delay
was dismissed, Ext.P11 petition also is dismissed holding the
same as barred by limitation by the court below. I could not find
any illegality in the orders impugned or any bonafides on the
part of the petitioner in prosecuting the Suit. As such I am not
inclined to interfere with the orders impugned.
Accordingly, this Original Petition stands dismissed.
Sd/-
(A.BADHARUDEEN, JUDGE)
rtr/
O.P.(C)No.854 of 2022
APPENDIX OF OP(C) 854/2022
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE PLAINT IN O.S NO.
58/16 BEFORE THE SUBORDINATE JUDGES
COURT, PUNALUR.
Exhibit P2 A TRUE COPY OF THE WRITTEN STATEMENT
WITH COUNTERCLAIM FILED BY THE
RESPONDENTS IN O.S NO.58/2016 ON THE
FILES OF THE SUBORDINATE JUDGES COURT,
PUNALUR.
ExhibitP3 A TRUE COPY OF THE JUDGMENT DATED
05.06.2017 IN O.S NO. 58/16 ON THE
FILE OF THE SUBORDINATE JUDGES COURT,
PUNALUR.
Exhibit P4 A TRUE COPY OF THE PRESCRIPTIONS DATED
5.12.2015 AND 14.5.2016 ISSUED FROM
THE GOVERNMENT AYURVEDA HOSPITAL,
THIRUVANATHAPURAM.
Exhibit P5 A TRUE COPY OF THE PRESCRIPTION AND
INVOICE DATED 02.05.2019 ISSUED FROM
ASTER MEDICITY, ERNAKULAM.
Exhibit P6 A TRUE COPY OF THE BILL DATED
11.04.2019 ISSUED FROM ASTER MEDICITY,
ERNAKULAM.
Exhibit P7 A TRUE COPY OF THE PETITION IN I.A
NO.2/2020 IN IN R.P O.S NO.58/16 ON
THE FILE OF THE SUBORDINATE JUDGES
COURT, PUNALUR.
Exhibit P8 A TRUE COPY OF THE PETITION IN I.A
NO.3/21 IN R.P O.S NO. 58/16 ON THE
FILE OF THE SUBORDINATE JUDGES COURT,
PUNALUR.
O.P.(C)No.854 of 2022
Exhibit P9 A TRUE COPY OF THE PETITION IN I.A
NO.4/21 IN R.P O.S NO.58/16 ON THE
FILE OF THE SUBORDINATE JUDGES COURT,
PUNALUR.
Exhibit P10 A TRUE COPY OF THE OBJECTION DATED
03.09.2021 FILED BY THE RESPONDENTS.
Exhibit P11 A TRUE COPY OF THE ORDER DATED
17.03.2022 IN REVIEW PETITION NO.
3/2021 IN R.P O.S NO. 58/2016 BEFORE
THE SUBORDINATE JUDGE'S COURT,
PUNALUR.
Exhibit P12 A TRUE COPY OF THE ORDER DATED
17.03.2022 IN I.A NO.4/2021 IN R.P O.S
NO. 58/2016 BEFORE THE SUBORDINATE
JUDGE'S COURT, PUNALUR.
