S.Sreekantan Nair vs R.Rajendran Nair @ Rajendran
2022 Latest Caselaw 10318 Ker

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OP(C) NO. 2718 OF 2018




            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
               THE HONOURABLE MR.JUSTICE C.S.DIAS
     FRIDAY, THE 7 DAY OF OCTOBER 2022 / 15TH ASWINA, 1944
                     TH



                     OP(C) NO. 2718 OF 2018
  IN OS 834/2013 OF III ADDITIONAL MUNSIFF COURT ,TRIVANDRUM
PETITIONER:

S.SREEKANTAN NAIR
AGED 52 YEARS
S/O LATE SIVASANKARA PILLAI FROM ATHESH, KHADI BOARD ROAD,
OORUTTUKALA, NEYYATTINKARA, NOW RESIDING AT N M C NO. III/86,
POOVANGAVILAKATHU, ATHIYANOOR VILLAGE, NEYYATTINKARA TALUK,
PIN-695123

BY ADVS.
VADAKARA V.V.N.MENON
SRI.N.S.GOPAKUMAR


RESPONDENT:

R.RAJENDRAN NAIR @ RAJENDRAN
CHANDRA NIVAS, TC NO, X1X/180(1), POOJAPPURA POST OFFICE
LANE, MUDAVANMUGHAL, THIRUMALA VILLAGE, THIRUVANANTHAPURAM
TALUK, PIN-695012

BY ADV R.T.PRADEEP


     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
07.10.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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OP(C) NO. 2718 OF 2018




            Dated this the 7 day of October, 2022
                                th




                                JUDGMENT

Aggrieved by the orders in I.A.Nos.3375/2015 (Ext.P3) and

6269/2015 (Ext.P5) in O.S.No.834/2013 of the Court of the

Additional Munsiff-III, Thiruvananthapuram, the plaintiff in the

suit has filed the original petition. The defendant is the

respondent.

2. The concise case of the petitioner, relevant for the

determination of the original petition, is that he has filed the

suit against the respondent, his close relative, for recovery of

Rs.9,90,250/-. The suit was listed for trial on 04.04.2015. As the

learned counsel for the petitioner is a practising lawyer before

this Court, he had entrusted the matter to one of his

colleagues. On 04.04.2015, there was no sitting. The mid-

summer vacation was commencing from 10.04.2015 till

20.05.2015. The counsel was informed that there was no

chance of the suit being listed before the vacation. The counsel

went to Jharkand and returned on 10.04.2015. To his dismay,

he found that the suit was called on 10.04.2015 and was

OP(C) NO. 2718 OF 2018

dismissed for default. On the day the courts reopened after

vacation, i.e., 20.05.2015, the petitioner filed Ext.P2 application

to restore the suit. The respondent opposed the same. By

Ext.P3 order, the court below dismissed Ext.P2

application. Then, the petitioner filed I.A.No.6269/2015 (Ext.P4)

to review Ext.P3 order. By the impugned Ext.P5 order, the court

below dismissed Ext.P4 application. Exts.P3 and P5 are

erroneous and wrong. Hence, the original petition.

3. Heard; Sri.Vadakara V.V.N.Menon, the learned Counsel

appearing for the petitioner and Sri.R.T.Pradeep, the learned

Counsel appearing for the respondent.

4. Sri.Vadakara V.V.N. Menon argued that the court below

ought to have taken a lenient view in the matter because on

the listed day, i.e.,04.04.2015, the counsel was very much

present before the court below. However, as there was no

sitting, the suit was adjourned to 10.04.2015, the last day

before summer vacation. The counsel had assumed that the

suit would be listed only after the summer recess and had gone

to Jharkhand. The court dismissed the suit on 10.04.2015. On

OP(C) NO. 2718 OF 2018

the re-opening day itself, the restoration application was filed,

which was dismissed. The application to review the order was

also dismissed. The court below has adopted a hyper-technical

and pedantic approach in mercilessly dismissing the suit and

the subsequent applications. Exts.P3 and P5 orders are

manifestly illegal and perverse and may be set aside.

5. Sri.R.T.Pradeep questioned the maintainability of the

original petition. He vehemently argued that since Ext.P3 order

is passed under Order 9 Rule 9 of the Code of Civil Procedure

(in short, 'Code'), the petitioner has an alternative statutory

remedy under Order 43 Rule 1 (c) of the Code. Hence, this

Court may not entertain the original petition under Article 227

of the Constitution of India. He relied on the decision of this

Court in Shanmughadas v. Malayil Subramanian [2014 (1)

KLT 1060] to fortify his contentions.

6. The points are whether:

(i) the petitioner is to be relegated to invoke the statutory

remedy provided under the Code.

OP(C) NO. 2718 OF 2018

(ii) there is any illegality in Exts.P3 and P5 orders passed by the

court below.

Point No. (i)

7. When the original petition came up for admission on

23.10.2018, this Court, on being prima facie satisfied and

convinced that there is manifest illegality in the impugned

orders, admitted the original petition and passed an interim

order directing the respondent not to alienate the property that

was attached before judgment. The interim order is still in

force.

8. It is for the first time that the learned Counsel for the

respondent has raised the point regarding the maintainability of

the original petition on the ground of alternative remedy.

9. Undoubtedly, Ext.P3 order has been passed on an

application filed under Order 9 Rule 9 of the Code, which is

appealable under Order 41 Rule 1(c) of the Code. Dehors the

alternative remedy, this Court admitted the original petition

and passed an interim order. It is after four years that the

respondent is raising the question of maintainability. Relegating

OP(C) NO. 2718 OF 2018

the petitioner to invoke the alternative statutory remedy at this

stage will be a travesty of justice.

10. It is well settled that the question of jurisdiction has to

be raised at the earliest point in time. Even otherwise, when

this Court had exercised its discretionary powers and

entertained the original petition, it is too late in the day for the

respondent to now contend that the petitioner that the original

petition is not maintainable in view of the alternative statutory

remedy.

11. A three-Judge Bench of the Honourable Supreme Court

in Radhey Shyam and another v. Chhabi Nath and others

[(2015) 5 SCC 423] has, inter alia, held that there is no absolute

bar in the High Courts' entertaining original petitions under

Article 227 of the Constitution of India in cases of exceptional

rarity and manifest illegality, despite there being an alternative

remedy. While appellate and revisional jurisdiction is regulated

by the statutes, the power of superintendence under Article

227 is constitutional, and the same remains unaffected even

after the curtailment of revisional powers by Act 46 of 1999. In

OP(C) NO. 2718 OF 2018

light of the above factual and legal matrix, I reject the

contention of the learned Counsel for the respondent and

answer point no. (i) in favour of the petitioner.

Point No. (ii)

12. On an analysis of the pleadings and materials on

record, it is seen that the suit was listed for trial on

04.04.2015. There was no sitting on the day. The suit was

adjourned to 10.04.2015, i.e., the day the court was closing for

summer vacation. As there was no representation for the

petitioner, the suit was dismissed. On the re-opening day after

vacation, i.e., on 20.05.2015, the petitioner filed I.A.

No.3375/2015 to restore the suit. Nonetheless, by a cryptic

order, the court below dismissed the application by holding that

the reason stated by the petitioner was not genuine.

13. Immediately, the petitioner filed Ext.P4 application to

review Ext.P3 order, which was also dismissed by the court

below by Ext.P5 order, holding that there is no error apparent

on the face of Ext.P3 order.

OP(C) NO. 2718 OF 2018

14. The course adopted by the court below is hyper-

technical and harsh. The court below ought to have borne in

mind that on the day the suit was listed for trial, the case was

adjourned for no fault of the petitioner but because there was

no sitting. Further, on the day the suit was adjourned, i.e.,

10.04.2015, the courts were closing for summer vacation for 40

days. So therefore, even if the trial had commenced on the said

day, there was no possibility of the court below disposing of the

suit on the same day. Hence, I am of the definite opinion that a

lenient view should have been taken by the court below instead

of perfunctorily dismissing the suit, the restoration petition and

the review petition.

15. In G.P.Srivastavav.R.K.Raizada & Others [2000

KHC 1023], the Hon'ble Supreme Court has empathetically held

that 'sufficient cause' contemplated under Order IX of the Code

has to be liberally construed to enable the Court to do complete

justice between the parties. The term 'sufficient cause' is an

elastic expression for which there is no hard and fast rule. The

OP(C) NO. 2718 OF 2018

Court must be given wide discretion in deciding what is

'sufficient case'.

16. In Robin Thapa v. Rohit Dora [2019 KHC 6641], the

Hon'ble Supreme Court has held that ordinarily litigation is

based on adjudication on the merit of the contention of the

parties and litigation may not be terminated by default of either

the plaintiff or the defendant. The cause of justice does require

that, as far as possible, adjudication be done on merits.

17. In the above legal and factual background, I hold that

there is a gross and manifest failure on the part of the court

below, which warrants interference by this Court under Article

227 of the Constitution of India. As the suit is of the year 2013,

complete justice would be done by directing the court below to

dispose of the within a time frame. Hence, I answer point no.

(ii) also in favour of the petitioner.

In the result, I allow the original petition in the following

manner:

i Exts.P3 and P5 orders are set aside.

ii Ext.P2 application is allowed.

OP(C) NO. 2718 OF 2018

(iii) O.S. No.834/2013 is restored to file.

(iv) The parties are directed to appear before the Court of

the Additional Munsiff-III, Thiruvananthapuram, on 01.11.2022.

(v) As the suit is of the year 2013, the court below shall

make every endeavour to dispose of the suit, in accordance

with law, as expeditiously as possible, at any rate on or before

23.12.2022.

SD/-

C.S.DIAS, JUDGE

rmm07/10/2022

OP(C) NO. 2718 OF 2018

APPENDIX OF OP(C) 2718/2018

PETITIONER EXHIBITS EXHIBIT P1 TRUE PHOTOCOPY OF THE CERTIFIED COPY OF THE ORDER OF ATTACHMENT BEFORE JUDGMENT DATED 2/7/2013 WITH REPORT OF THE AMIN AND THE SCHEDULE OF THE PROPERTY ATTACHED EXHIBIT P2 TRUE COPY OF I.A.NO. 3375/2015 DATED 20/5/2015 WITH AFFIDAVIT OF THE PETITIONER FILED BY HIM BEFORE THE III ADDL. MUNSIFF'S COURT, TRIVADRUM IN OS NO.834/2013 EXHIBIT P3 TRUE COPY OF THE ORDER DT.4/7/2015 PASSED BY THE II ADDL.MUNSIFF'S COURT,THIRUVANANTHAPURAM IN THE SAID I.A.NO.3375/2015 EXHIBIT P4 TRUE PHOTOCOPY OF REVIEW PETITION I.A.NO.6269/2015 ALONG WITH THE AFFIDAVIT OFT HE ADVOCATE T.SREEKANTAN AND ORDER DATED 7/4/2015 PASSED BY THE HON'BLE HIGH COURT IN IA.NO.4833/2015 IN WP(C) NO.463 (C)/2004 (B) EXHIBIT P5 TRUE PHOTOCOPY OF THE CARBON COPY OF THE ORDER DATED 7/9/2018 PASSED BY THE II ADDL.MUNSIFF'S COURT, THIRUVANANTHAPURAM ON I.A.NO.6269/2015 IN OS NO.834/2013