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2020 DIGILAW 941 (KER)

Sathyan v. Ravi

2020-11-06

R.NARAYANA PISHARADI

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JUDGMENT : R. Narayana Pisharadi, J. 1. The petitioners are the defendants and the respondent is the plaintiff in the suit O.S. No. 6/2014 on the file of the Sub Court, Thodupuzha. 2. The suit was instituted for granting a decree for specific performance of an agreement dated 30.05.2013 alleged to have been executed by the plaintiff and the defendants for sale of the plaint schedule property and in the alternative, for realisation of the amount of Rs. 2,00,000/- allegedly given by the plaintiff to the defendants as advance towards sale consideration. 3. The suit came up for trial in the special list on 15.02.2016. On that day, Ext.P2 application was filed by the counsel for the plaintiff seeking adjournment of the trial of the suit on the ground that the plaintiff was not well. The trial court dismissed Ext.P2 application and consequently dismissed the suit also for default. 4. Subsequently, the plaintiff filed Ext.P3 application under Order IX Rule 9 of the Code of Civil Procedure, 1908 (for short 'the Code') to restore the suit to file. The plaintiff also filed Ext.P4 application to condone the delay of 693 days in filing Ext.P3 application. 5. On 05.09.2018, when the trial court took up Exts.P3 and P4 applications for consideration, the plaintiff was absent. Therefore, the trial court dismissed Exts.P3 and P4 applications as per Exts.P6 and P7 orders, which read as follows: "Petitioner absent. Respondent represented. Petitioner is not ready for evidence. Hence petition is dismissed." 6. The plaintiff filed appeal as C.M.A. No. 39/2018 in the District Court, Thodupuzha challenging Exts.P6 and P7 orders passed by the trial court. 7. As per Ext.P9 judgment, the District Court allowed the appeal and set aside Exts.P6 and P7 orders passed by the trial court on the condition that the plaintiff shall deposit an amount of Rs. 5,000/- as costs to be paid to the defendants. 8. The defendants have filed this original petition under Article 227 of the Constitution of India challenging the legality and propriety of Ext.P9 judgment. 9. Heard the learned counsel for the petitioners and also the respondent. 10. 5,000/- as costs to be paid to the defendants. 8. The defendants have filed this original petition under Article 227 of the Constitution of India challenging the legality and propriety of Ext.P9 judgment. 9. Heard the learned counsel for the petitioners and also the respondent. 10. Learned counsel for the petitioners contended that there was inordinate delay of 693 days in filing the application for restoration of the suit and the plaintiff had not properly explained the delay and therefore, the appellate court should not have interfered with Exts.P6 and P7 orders passed by the trial court. 11. The relevant portion of Ext.P9 judgment of the appellate court, which gives the reasons for allowing the appeal, reads as follows: "Even thereafter application to restore the suit was filed after a delay of about 693 days. Reason stated is that, when the matter came up for trial on 15.12.2016, he was working in Karnataka. The reason stated for adjourning the trial is illness. In the application to restore the suit, delay is stated to be due to his engagement elsewhere. Regarding this aspect for what purpose appellant was in Karnataka or details regarding engagement and the specific reason for being in Karnataka for such a long period, without being able to get in touch with counsel or to come over to Thodupuzha, are not stated. It is a vague reason, is evident. In spite of that it is to be noted that plaintiff had remitted a huge amount as court fees. This will show that he is desirous to contest the suit and to get a decree on merits. It is evident that there are latches on his part. Interest of justice demands a decision on merit. However the hardships caused to the defendant/respondent cannot be lost sight of. In the circumstance, I think that subject to payment of Rs. 5,000/- to defendant/respondent, petition can be allowed." 12. The appeal before the District Court was filed against the dismissal of Exts.P3 and P4 applications for default by the trial court. Therefore, the question whether the plaintiff had shown sufficient cause for the delay of 693 days in filing Ext.P3 application for restoring the suit to file was not a matter for consideration by the appellate court. The appeal before the District Court was filed against the dismissal of Exts.P3 and P4 applications for default by the trial court. Therefore, the question whether the plaintiff had shown sufficient cause for the delay of 693 days in filing Ext.P3 application for restoring the suit to file was not a matter for consideration by the appellate court. When the appellate court intended to restore the aforesaid applications to the file of the trial court for consideration by it, it should not have discussed the merits of those applications. 13. Except the above mentioned flaw in Ext.P9 judgment, the appellate court has taken a reasonable view of the matter in finding that interests of justice demand a decision on merits in Exts.P3 and P4 applications. 14. Ordinarily, a litigation is based on adjudication on the merits of the contentions of the parties. Litigation should not be terminated by default, either of the plaintiff or the defendant. The cause of justice does require that, as far as possible, adjudication be done on merits (See Robin Thapa v. Rohit Dora, AIR 2019 SC 3225 ). 15. However, the fact remains that the suit is of the year 2014. Considering the fact that there were laches on the part of the plaintiff which have caused hardship and prejudice to the defendants especially on account of the protraction of the trial, I find that the costs awarded by the appellate court to the defendants should be enhanced to Rs. 10,000/-. 16. Consequently, the original petition is disposed of as follows: Ext.P9 judgment shall stand confirmed on deposit of a further amount of Rs. 5,000/- (Rupees five thousand only) by the respondent/plaintiff in the trial court towards additional costs to be paid to the petitioners/defendants. The parties shall appear before the trial court on 01.12.2020. The additional amount of Rs. 5,000/- (Rupees five thousand only) shall be deposited by the respondent/plaintiff in the trial court on or before that date. If the respondent/plaintiff fails to deposit the amount as above within the stipulated period, this original petition will stand allowed and Ext.P9 judgment will stand set aside and Exts.P6 and P7 orders of the trial court shall stand restored. 5,000/- (Rupees five thousand only) shall be deposited by the respondent/plaintiff in the trial court on or before that date. If the respondent/plaintiff fails to deposit the amount as above within the stipulated period, this original petition will stand allowed and Ext.P9 judgment will stand set aside and Exts.P6 and P7 orders of the trial court shall stand restored. If Exts.P3 and P4 applications are restored to the file of the trial court on deposit of the additional amount of costs by the respondent/plaintiff, the trial court shall dispose of those applications on merits as expeditiously as possible untrammelled by any of the observations made in Ext.P9 judgment touching upon the merits of those applications. 17. All interlocutory applications pending in this original petition are closed.