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2020 DIGILAW 129 (KER)

USHA DEVI BHARATHAN v. SABU J.

2020-02-03

SATHISH NINAN

body2020
JUDGMENT Sathish Ninan, J. - The suit for declaration that sale deed Nos. 2294, 2295 and 2296/2010 are null and void and for consequential reliefs was dismissed by the court below. Thereupon, the petitioner who is the plaintiff in the suit, filed an application styled as review petition, seeking restoration of the suit. The trial court considered the application and allowed the same on payment of costs. However, the costs as directed was not paid. Consequently the application for restoration stood dismissed. 2. Seeking review of the order of dismissal, the petitioner filed review petition. The same happened to be dismissed for the reason that it is not in the proper form. 3. Thereafter, the petitioner filed applications seeking restoration of the suit under Order 9 Rule 9 CPC and to condone the delay. The said applications were allowed by the trial court. The respondent/defendant challenged the said order before this Court. The order was set aside by this court and directed the court below to consider the matter afresh. Thereafter, as per the impugned order, the trial court dismissed the applications. 4. Heard learned counsel on either sides. 5. The restoration application though allowed on condition, the same was dismissed for non-compliance of the condition. The application I.A. No. 264/2015 filed seeking review of the order was dismissed by the court not on merits but for the reason that it is not in proper form. It is thereafter the petitioner filed the present application seeking restoration and to condone the delay. 6. It is the dismissal of the review petition namely I.A. No. 264/2015, that necessitated filing of the present applications by the petitioner. I am of the opinion that the dismissal of the Review petition I.A. No. 264/2015 only for the reason that, it is not in proper form was not correct. As noticed supra, the dismissal of the restoration application was only for the reason of non-payment of costs. The court could have granted extension of time in the review petition in I.A. No. 264/2015 and the suit restored to file. I.A. No. 264/2015 ought to have been allowed, since the same was dismissed on technical reasons relating to its form. The subsequent applications I.A. No. 149 and 150 of 2016 were not at all necessary. The court could have granted extension of time in the review petition in I.A. No. 264/2015 and the suit restored to file. I.A. No. 264/2015 ought to have been allowed, since the same was dismissed on technical reasons relating to its form. The subsequent applications I.A. No. 149 and 150 of 2016 were not at all necessary. Even otherwise, it is open for the court, consider the said applications as seeking review of the earlier of dismissal for non-payment of the costs, and for condonation of delay in filing the application. It is trite that procedure is only the hand maid of justice and that the endeavour of the court must be to decide lis on merits rather that on default. On the facts as noticed above, I am of the opinion that the suit could be restored to file and disposed of on merits. However, the inconvenience caused to the respondents due to the negligence on the part of the petitioner is liable to be compensated by way of costs. I consider that an amount of Rs. 15,000/- (Rupees Fifteen thousand only) could be imposed as costs. 7. In the result, the original petition is allowed. The order on I.A. No. 264/2015, I.A. No. 149/2016 and I.A. No. 159/2016 of the Sub Court Pathanamthitta are set aside and the suit O.S. 134 of 2012 of the Sub Court, Pathanamthitta will stand restored. However, this shall be subject to the condition that the petitioners pay an amount of Rs. 15,000/- (Rupees Fifteen thousand only) as costs to the counsel appearing for the respondents before this court, within a period of two weeks from today. In the event of non-payment of costs as ordered, the applications will stand dismissed. Considering the fact that the suit is of the year 2012, the Sub Court shall make every endeavour to have the suit tried and disposed of as expeditiously as possible and at any rate within a period of three months from the date of receipt of a copy of this judgment.