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2000 DIGILAW 361 (KER)

Jess Raphael v. Joseph

2000-07-17

G.SIVARAJAN, S.SANKARASUBBAN

body2000
JUDGMENT S. Sankarasubban, J. 1. The above C.M.A. is filed against the order in I.A.No.3019 of 1992 in O.S. No.419 of 1985 of the Additional Sub Court, Ernakulam. Plaintiffs in the suit are the appellants. The suit was filed by them informa pauperis. The suit was filed for damages. First plaintiff is a Medical Practitional conducting a nursing home under the name and style 'Pavanathara Nursing Home' at Ernakulam. Second plaintiff is the wife of the first defendant. Plaint schedule property belongs to defendants 1 and 2, which has been leased out to the first plaintiff as per lease deed dated 20.4.1971. According to the plaintiffs, defendants have been taking coercive steps to vacate the building. With that view, the defendants committed criminal trespass and caused serious damages to the property and the Nursing Home. They filed R.C.P. to evict the plaintiffs, but same was dismissed. 2. As already stated, the suit was filed for realisation of damages as indigent persons. Notice was issued to the Government Pleader and the respondent on 8.10.1985. The court allowed the plaintiffs to prosecute the suit as indigent persons. Against the order allowing the plaintiffs to file the suit informa pauperis, defendants filed a revision before this Court as C.R.P. No.5 of 1986. C.R.P. No.5 of 1986 was dismissed by order dated 22.7.1987. It seems, against the order in the Civil Revision Petition, defendants filed S.L.P., but that was also dismissed. From 17.7.1986, the suit was being adjourned, because the matter was pending in the High Court. The court awaited for records. 3. From the proceedings, it is seen that the records were received on 31.10.1991. On that day, the court ordered summons to the defendants and posted the case to 29.11.1991. On 29.11.1991, again the court ordered issue of summons to the defendants. On 9.1.1992, the court ordered issue of fresh summons in the correct address. Further endorsements on 29.1.1992 and on 10.4.1992 are to issue fresh summons. On 22.6.1992, there was no representation and there was no representation and there was no steps taken. So, the case was posted on 24.6.1992. On that day, since there was no representation, the suit was dismissed for default. On 27.6.1992, i.e., two days later, the plaintiffs filed LA. No.3019 of 1992 to set aside the order dismissing the suit and to restore the suit to file. So, the case was posted on 24.6.1992. On that day, since there was no representation, the suit was dismissed for default. On 27.6.1992, i.e., two days later, the plaintiffs filed LA. No.3019 of 1992 to set aside the order dismissing the suit and to restore the suit to file. Along with the I.A., an affidavit was filed by the plaintiffs. In Para.4 of the affidavit, it is stated that from 31.1.1987 to 31.10.1991, the court awaited for records. Plaintiffs further states that he had engaged to Advocates, viz., Smt. Annamma Alexander and Sri.A. Shahul Hameed. Smt. Annamma Alexander died in April, 1991. First plaintiff further states that he was not aware of the last three postings of the case. He was not aware of that postings due to reasons beyond his control. He has also stated that the subsequent postings of the case were also not known to him. Further, it is stated that he was under the bona fide belief that the records did not return from this Court. Petition was filed immediately to restore the suit. This application was heard on 17.8.1992 and by the impugned order, it was dismissed. 4. Court below held that on 31.10.1991, the petitioners were asked to take summons to the defendants. Since no steps were taken by the petitioners-plaintiffs, the suit was adjourned to 29.11.1991. Thereafter, on 9.1.1992 and then to 29.1.19992. Finally, the suit was dismissed only on 24.6.1992. According to the court below, sufficient opportunity was given to the petitioners-plaintiffs to prosecute the suit. Hence, the court below dismissed the application on the ground of laches. 5. Learned counsel for the petitioners, Shri.P.P.Mathew submitted that as a matter of fact, there was no fault on the part of the petitioners. The case was not posted for the purpose of appearance of the plaintiffs or for the examination of the plaintiffs. If was only posted for taking steps to issue summons to the defendants. Learned counsel submitted that his clients has engaged advocate and it was the duty of the advocate to represent the court regarding the Steps taken for the issue of summons. He submitted that once the counsel is engaged and arrangements are made with him for the purpose of conducting the case, it is not necessary for the party to come to the court always. He submitted that once the counsel is engaged and arrangements are made with him for the purpose of conducting the case, it is not necessary for the party to come to the court always. In this case, according to the counsel by some mistake, the advocate was not present when the case was called and the case was posted for awaiting the records. Counsel also brought to our notice the decisions in Plantation Corporation of Kerala Ltd. v. Hussain 1998 (1) K.L.T. 1008 , Aboo v. Ahammed - 1986 K.L.T. S.N. 49 and Sreedhara Kurup v. Mickel - 1968 K.L.T. 599. 6. Learned counsel for the respondents submitted that the suit was filed in 1985. Now, we are in 2000. At this distance of time, the suit cannot be restored back. Further, he Submitted that in spite of giving opportunity, no steps were taken for the issue of summons. 7. After hearing both sides, we are of the view that the lower court should have restored the suit to file. We are sorry to note that the court below has acted very technically. The suit was dismissed on 24.5.1992 and the petition for restoration was filed on 27.6.1992. The suit has been dismissed for default for not taking steps for the issue of summons. The court could have immediately allowed the petition and directed the plaintiffs to take steps. On the other hand, the court below dismissed the case on the ground that the plaintiffs was not vigilant. 8. It is true that a number of postings were made for taking steps to issue summons. But if we look in the particular facts of this case, we can find that pauper petition was filed on 20.3.1984. That was allowed on 8.10.1985. But the defendants challenged the same and the records came back to the trial court only on 31.10.1991, i.e., nearly six years after the pauper application was allowed. The suit was dismissed on 24.6.1992. While we understand the difficulty to which the defendants put, the suit is restored because of the passage of time, we are of the view that the plaintiffs should not also be non-suited for no fault of them. The suit was dismissed on 24.6.1992. While we understand the difficulty to which the defendants put, the suit is restored because of the passage of time, we are of the view that the plaintiffs should not also be non-suited for no fault of them. It is only common knowledge that as soon as the suit is instituted, normally, the plaintiff entrusts the entire matter with the advocate and his clerk for the conduct of the case, especially regarding the payment of batta, taking steps for issuing summons, etc. Unless the parties are informed that the court has posted the case for issuing summons, the parties cannot be blamed for not taking steps. 9. After considering the entire matter, we are of the view that it is a case where application for restoration should have been allowed. At the same time, we want to compensate the defendants for the hardship caused to them. 10. In the result, we pass the following order: The order of the court below in LA. No.3019 of 1992 will stand set aside and the LA. will stand allowed on condition that the petitioners pay to the counsel for the respondents an amount of Rs. 1,500/- (Rupees one thousand five hundred only) as costs within a period of one month from today. If the amount as stipulated above is paid, then the LA. will stand allowed and O.S. No.419 of 1985 of the Additional Sub Court, Ernakulam will stand restored to file. In that case, the suit will be posted in the lower court on 24.8.2000. Defendants shall file written statement within one month thereafter and the suit shall be disposed of before the end of December, 2000. C.M.A. is disposed of as above.