P. BALAKRISHNAN v. MOOSA HAJI

THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR FINAL HEARING ON 19.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: F.A.O No.73 of 2023 2 G. Girish, J. J U D G M E N T Aggrieved by the dismissal of I.A.No.10 of 2021, filed by the plaintiff in O.S.No.185 of 2013 of the Sub Court, Tirur for setting aside the dismissal of the suit for default and for restoration, as per order dated 02.06.2023 of the said court, the appellant is here before this Court with this appeal.

2. The suit, one filed by the appellant for declaration and permanent prohibitory injunction, stood posted for trial to

11.10.2021 before the Sub Court, Tirur. On that day, the learned counsel for the appellant is said to have reported no instructions leading to the dismissal of the suit for default. According to the appellant, he was not in a position to appear before the Sub Court on 11.10.2021, and to do the needful for the prosecution of his case since his wife was admitted at the Cardiology Department of HMS Hospital, Kottakkal due to chest pain, and that she was discharged only on 12.10.2021 after the completion of treatment there. The appellant is seen to have filed this petition for setting aside the dismissal of the suit and restoration of the suit to files within time.

3. The respondent, who is the defendant in this suit, had opposed the petition stating the reason that there was no bona fides F.A.O No.73 of 2023 3 in the petition filed by the appellant and that the appellant was of the habit of procrastination of the suit for one reason or other in the past as well. According to the respondent, there was no illness for the wife of the appellant, as stated in the petition, and that the reason stated in the above regard was only a ploy to adjourn the case.

4. The learned Sub Judge, after considering the rival contentions in the above regard, arrived at a finding that the petition filed by the appellant was unworthy of acceptance for want of bona fides and merit. According to the learned Sub Judge, the appellant ought to have contacted his lawyer and moved appropriate applications on 11.10.2021 even though his wife was under treatment in the hospital mentioned in the petition. Relying on the records produced by the appellant, the learned Sub Judge observed that all the procedures before the hospital including purchase of medicines after taking Echo and Electro Cardiogram, were completed at 2.59 p.m on 11.10.2021, and hence there was no difficulty for the appellant to come to the court on the same day and to give instructions to his counsel. Learned Sub Judge further found fault with the appellant for not producing any record to prove that he was the bystander for his wife at the hospital. In addition to the above reasons, the learned Sub Judge found that the past conduct of the F.A.O No.73 of 2023 4 appellant was also of such a nature that he preferred to avoid trial in the suit and to get the proceedings adjourned for some reason or other whenever the case was taken up for trial in the special list.

5. It is seen from the records that the suit before the court below stood posted for trial in the special list on 11.10.2021, during the period of second spell of Covid-19 pandemic. The fact that the wife of the appellant had approached a hospital at Kottakkal in connection with chest pain and had undergone procedures at the Cardiology Department, is seen to have been revealed from the records produced before the learned Sub Judge. That being so, the observation of the court below in the impugned order that inspite of the above contingency, the appellant ought to have rushed to the court on 11.10.2021 and given instructions to his counsel for the due prosecution of his case, does not appear to be a sound reasoning. It is well settled that, in matters of this nature, the court shall not adopt a pedantic approach and stick on to technicalities. It is true that the past conduct of the appellant in connection with the proceedings in this case would reveal that he was not ready to adduce evidence on two occasions when the case was posted for trial. However, the above aspect cannot be taken as a ground to shut the door against the appellant and to prevent him from having an opportunity to proceed with the suit to have a disposal on merit, F.A.O No.73 of 2023 5 when it is shown that there were sufficient reasons which prevented him from appearing before the court on the date of trial and giving instructions for the due prosecution of his case. Therefore, we are of the considered view that the petition filed by the appellant before the learned Sub Judge for restoration of the suit ought to have been allowed by the said court, especially taking into consideration of the fact that the default on the part of the appellant in the above regard happened during Covid-19 pandemic period. Thus, the impugned order of the court below is liable to be set aside, subject to payment of costs to the respondent for the hardships caused due to the further procrastination of proceedings. In the result, the appeal stands allowed as follows: (i) The impugned order of the court below dated

02.06.2023 in restoration petition I.A.No.10 of 2021 is reversed subject to payment of costs to the tune of Rs.5,000/- (Rupees five thousand only) to the respondent within a period of three weeks from today. (ii) The suit O.S.No.185 of 2013 of Sub Court, Tirur stands restored to files and posted to 15.02.2024 for the appearance of parties. F.A.O No.73 of 2023 6 (iii) On 15.02.2024, upon being convinced about the payment of costs as directed above, the learned Sub Judge shall proceed with the suit giving opportunities to both sides to adduce evidence. (iv) Since the litigation is of the year 2013, the learned Sub Judge shall make every endeavour to dispose of the suit, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a copy of this judgment. (sd/-) ANIL K. NARENDRAN, JUDGE (sd/-) G. GIRISH, JUDGE