Kerala High Court
Jaseer M.M vs Rajeena J.S
Bench: V.K.Mohanan, K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
&
THE HONOURABLE MR.JUSTICE K.HARILAL
FRIDAY, THE 7TH DAY OF NOVEMBER 2014/16TH KARTHIKA, 1936
Mat.Appeal.No. 427 of 2014 (A)
------------------------------
(IA.359/2013 IN OP(G&W).859/2011 OF FAMILY COURT, NEDUMANGAD)
........
APPELLANT(S)/PETITIONER :
----------------------------------------
JASEER M.M.
S/O. A.M.BASHEER, JASEER MANZIL, KOCHALUMMOODU
VEMBAYAM P.O., THIRUVANANTHAPURAM.
BY ADVS.SRI.K.RAJESH KANNAN
SRI.A.S.SHAMMY RAJ
RESPONDENT(S)/COUNTER PETITIONER :
--------------------------------------------------------------------
RAJEENA J.S
D/O. JALALUDEEN, RAJEENA MANZIL, PERINGAMMALA
DAIVAPURA P.O., THIRUVANANTHAPURAM.
BY ADV. SRI.J.JAYAKUMAR
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 07-11-2014, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MAT.APPEAL 427/2014
APPENDIX
APPELLANT'S ANNEXURES: NIL
RESPONDENT'S ANNEXURES:
R1(A): TRUE COPY OF IA.359/13 IN OP(G&W) 895/11 FILED BY THE APPELLANT BEFORE
THE FAMILY COURT, NEDUMANGAD.
R1(B): TRUE COPY OF THE COMMON ORDER DATED 21/11/13 IN IA.1395/13 & 1396/13
IN OP.895/11 OF FAMILY COURT, NEDUMANGAD.
OKB
//true copy//
P.A. to Judge..
V.K.MOHANAN & K.HARILAL, JJ
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Mat. Appeal No.427 of 2014
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Dated this the 7th day of November, 2014
JUDGMENT
Harilal, J The appellant is the petitioner in O.P.(G&W) No.895/11 on the files of the Family Court, Nedumangad as well as the petitioner in I.A.No.359/13, 1395/13 and 1396/13 filed therein. The said O.P. was filed for a declaration that the petitioner is the guardian of the child Nida Banu and for getting permanent custody of the said child. Two other cases were also pending before the same Court in connection with the matrimonial dispute between the petitioner and the respondent. All the cases were posted to 2/7/2012. On the said day the learned counsel appearing for the petitioner sought for time to file proof affidavit in all these cases and the cases were adjourned to 11/9/2012. But, unfortunately, O.P.(G&W) No.895/11 alone was de-linked and posted to 2/7/2012. The petitioner's counsel was under the impression that all the four cases were adjourned to 11/9/2012. When O.P.(G&W) No.895/11 was called on 2/7/2012, there was no representation M.A.427/14-A :2:
for the petitioner and the case was adjourned to 21/8/2012. On that day the case was dismissed for default. But it was only on 2/2/2013 the petitioner came to know about the dismissal of the case when he appeared before the Judicial First Class Magistrate's Court, Nedumangad in another case. Hence he filed I.A. No.359/13 for restoring the Original Petition after condoning the delay of 178 days.
2. The respondent filed objection to that petition and disputed the reasons stated for condoning the delay. After considering the rival contentions, the court below dismissed the above petition mainly on the ground that the specific provision in the Code of Civil Procedure for filing restoration application has not been invoked. So also, the reason for delay was not properly explained. Feeling aggrieved, the petitioner again filed I.A. No.1395/13 for restoration of the O.P. and I.A. No.1396/13 for condonation of delay. The respondent filed objection to these petitions also contending that the second application for restoration is not maintainable in view of the dismissal of the earlier I.A. No.359/13. The delay petition was also opposed on the reason that the delay is not properly and satisfactorily explained. After considering the averments in the petition and the objection thereon, the learned Judge again M.A.427/14-A :3:
dismissed both the applications. The legality and propriety of the order dismissing I.A. Nos.359/13, 1395/13 and 1396/13 are under challenge in this Mat. Appeal.
3. The learned counsel for the appellant submits that the court below has miserably failed to appreciate the reason for delay in filing the applications and the reason for non-appearance of the counsel on the day when the case was taken up for hearing. According to the learned counsel for the appellant, the O.P. happened to be dismissed not due to the fault of the petitioner; but it was so happened due to the fault of the counsel appearing for the petitioner before the trial court. The counsel bona fide believed that all the cases were posted together. But contrary to his belief the above O.P. alone was posted to 21/7/2012 and the other cases were posted to 11/9/2012. The petitioner had not been informed of the dismissal of the O.P. in time. Thus, there was no wilful negligence or default in not appearing before the Court when the case was taken up for hearing and also in causing the delay. The learned counsel further submits that misquoting or wrong quoting of a provision of law does not disentitle a litigant from justice from the court of law. The court below has dismissed I.A. Nos.139513 and 1396/13 for the aforesaid reason. Even M.A.427/14-A :4:
though the delay was properly explained in I.A. No.1396/13, the Court below went wrong and arrived at a finding that the delay is not properly explained.
4. Per contra, the learned counsel for the respondent advanced arguments to justify the reasons whereby the court below dismissed all the above I.A.s. According to him, the reason for non appearance of the counsel is unbelievable and the inordinate delay in filing the applications was not properly explained.
5. We have given our anxious consideration to the rival submissions at the Bar. Going by the impugned order passed on I.A. No.395/13, it is seen that the above I.A. was dismissed mainly on the ground that the petitioner has quoted Section 151 of the C.P.C. instead of Order 9 Rule 9 of the C.P.C. So also, the inordinate delay was not properly explained. As regards the delay is concerned, it is the specific case of the appellant that the delay was caused by the inadvertent mistake committed by the counsel appearing for the petitioner before the lower court. Though the case was posted on 21/7/2012, the counsel was under the impression that this case was also posted along with the other three cases which were posted to 11/9/2012. It is also contended that the counsel came to know about the dismissal of M.A.427/14-A :5:
the O.P. after a long time and he was not informed of the said dismissal in time.
6. As regards the dismissal of the application for restoration, the court below has taken a technical view only. The pleadings in an application deserve priority and importance rather than section quoted in the cause title. Substantial justice cannot be denied on the basis of misquoting of section or rule. No doubt, the Registry could have brought the same to the notice of the parties as defect, enabling the parties to cure the defect. But after accepting the same on the files, it cannot be dismissed at the fag end on that reason, if the pleadings in the application are made out in consonance with the correct provisions. In the instant case, there is no finding that the pleadings are not in consonance with the correct provisions. That apart, we are of the opinion that when substantial justice and technical considerations are pitted against each other, substantial justice deserves to be preferred rather than technical considerations. More over, adjudication of a lis on merit after granting sufficient opportunities to the parties to the lis is always necessary for the interest of justice. Though we are not satisfied with the reasons for the non-appearance of the parties, when the case was called on for hearing and delay in M.A.427/14-A :6:
filing application for restoration, we are taking a lenient view on terms in the above view. We are also of the opinion that the appellant can be given an opportunity to contest the O.P. on merit.
7. Consequently, the impugned orders under challenge will stand set aside on condition that the appellant shall pay Rs.10,000/- (Rupees Ten thousand only) as cost to the respondent within a period of two weeks from the date of receipt of this judgment and produce the receipt thereof before the court below, failing which the impugned orders under challenge will stand in force. On compliance of the above direction, the court below shall restore O.P.(G&W) No.895/11 on the files and proceed in accordance with law.
Sd/-
(V.K.MOHANAN, JUDGE) Sd/-
(K.HARILAL, JUDGE) okb.
//true copy// P.A. to Judge.