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2011 DIGILAW 220 (KER)

Krishna Pillai v. Martin

2011-02-23

K.T.SANKARAN

body2011
JUDGMENT :- 1. The petitioner filed O.S.No.334 of 2010 on the file of the Principal Sub Court, Ernakulam, against the respondents for realisation of money. 2. Defendants 1 and 2 were served with summons. The process server reported that on enquiry he came to know that the third defendant had changed his residence. The process server tried to ascertain the correct address. But he did not get any fruitful information from the neighbours. 3. Later, summons to the third defendant was affixed at the last known residence of the third defendant. 4. It would appear that the court below also directed substituted service to the third defendant by publication in Malayala Manorama daily. 5. The petitioner states that he was engaged in the repair of old type televisions and after the introduction of new models, he has no work. The petitioner states that he is not in a position to bear the expenses for publication in Malayala Manorama daily. It is stated that the wife of the petitioner, who was blind, and who was working as part time sweeper, died. The petitioner states that he is residing with his mother-in-law. Expressing his inability to pay the necessary charges for publication in a newspaper like Malayala Manorama, the petitioner filed I.A.No.8389 of 2010 for granting permission to effect the publication in Madhyamam Daily, Mangalam Daily or Kerala Koumudi Daily, which is less expensive. That application was dismissed on 7.12.2010. The petitioner filed I.A.No.853 of 2011 to review the order directing publication in Malayala Manorama. That application was also dismissed on 5.2.2011. This Original Petition is filed to quash the order directing newspaper publication in Malayala Manorama and also for granting permission to the petitioner to effect the publication either in Kerala Koumudi, Mangalam or Madhyamam. 6. The records in the case were called for. All the records were submitted to this court on 14.2.2011. It is stated by the learned counsel for the petitioner that subsequently the suit itself was dismissed for default on 18.2.2011 on the ground that newspaper publication was not effected. The Registry was directed to verify whether the suit was dismissed. It is reported that the suit was dismissed for default on 18.2.2011. The learned Principal Subordinate Judge reported that the suit would not have been dismissed by him had it been brought to his notice that the records were called for by the High Court. 7. The Registry was directed to verify whether the suit was dismissed. It is reported that the suit was dismissed for default on 18.2.2011. The learned Principal Subordinate Judge reported that the suit would not have been dismissed by him had it been brought to his notice that the records were called for by the High Court. 7. When his impecunious circumstances were pointed out by the petitioner, the court below was bound to consider the same and the court should not have compelled the party to make publication in a newspaper incurring huge expenses. In the present case, notice was affixed in the last known residence of the third defendant. Poor persons are also entitled to approach the court for redressal of their grievances. Courts should be kind enough towards the litigants and the litigants should not be overburdened by compelling them to incur huge expenditure for the conduct of cases. Litigants should not be led to think that courts are intended only for rich persons. Various methods are provided in Order V of the Code of Civil Procedure to effect service of summons and for substituted service. When the plaintiff applied for review of the order directing newspaper publication in Malayala Manorama daily and for permission to make the publication in any of the three other dailies, the court was not justified in dismissing those applications. The court below should have considered all the relevant aspects. I am of the view that the orders passed by the court below are liable to be set aside. I do so. 8. In spite of the fact that the records were sent to the High Court on 14.2.2011, the suit was dismissed for default on the ground that newspaper publication was not effected. It was done in the circumstances mentioned in the report of the learned Subordinate Judge. The order passed by the court below dismissing the suit for default is hereby set aside. The suit shall stand restored. The court below shall consider whether affixture was sufficient for substituted service in respect of the third defendant. If the court is satisfied that the newspaper publication is required, then the court shall consider the question whether the publication can be directed to be effected in Kerala Koumudi, Mangalam, Madhyamam or any other newspaper, instead of Malayala Manorama, so that the petitioner need not incur huge expenditure. If the court is satisfied that the newspaper publication is required, then the court shall consider the question whether the publication can be directed to be effected in Kerala Koumudi, Mangalam, Madhyamam or any other newspaper, instead of Malayala Manorama, so that the petitioner need not incur huge expenditure. The court below shall issue fresh summons to defendants 1 and 2. The Original Petition is allowed as above.