Kerala High Court
M/S Poabs Estates (P) Ltd vs State Of Kerala on 5 August, 2017
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
TUESDAY, THE 12TH DAY OF DECEMBER 2017/21ST AGRAHAYANA, 1939
OP(C).No. 3106 of 2017 (O)
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OS.142/2015 OF THE PRINCIPAL SUB COURT, PALAKKAD
PETITIONER:
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M/S POABS ESTATES (P) LTD.,
REPRESENTED BY ITS MANAGING DIRECTOR,
SRI.JOSEPH JACOB, AGED 42 YEARS,
S/O.P.A.JACOB, BUSINESS,
SEETHARGUNDU, NELLIYAMPATHY,
CHITTUR TALUK, PALAKKAD DISTRICT.
BY ADV. SRI.N.JAMES KOSHY
RESPONDENT:
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STATE OF KERALA,
REPRESENTED BY THE DISTRICT COLLECTOR,
PALAKKAD, PIN-678508.
BY SR. GOVERNMENT PLEADER SRI.M.R.SABU
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12-12-2017, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
EL
OP(C).No. 3106 of 2017 (O)
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APPENDIX
PETITIONER(S)' EXHIBITS
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P1 TRUE COPY OF THE AFFIDAVIT AND PETITION IA.1367/2017 IN OS.142/2015
FILED BY THE DEPUTY COLLECTOR (LR), PALAKKAD BEFORE THE ADDITIONAL
SUB COURT, PALAKKAD
P2 TRUE COPY OF THE COUNTER STATEMENT FILED IN IA.1367/2017 IN
OS.142/2015 BY THE PETITIONER/PLAINTIFF BEFORE THE ADDITIONAL SUB
COURT, PALAKKAD
P3 TRUE COPY OF THE ORDER IN IA.1367/2017 IN OS.142/2015 OF THE COURT
OF THE PRINCIPAL SUBORDINATE JUDGE, PALAKKAD DATED 5.8.2017
RESPONDENT(S)' EXHIBITS
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R1(A) TRUE COPY OF THE JUDGMENT REPORTED IN SAMBHAJI AND OTHERS VS.
GANGABAI AND OTHER (2009(1) KHC 415)
TRUE COPY
P.S. TO JUDGE
EL
ALEXANDER THOMAS, J.
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O.P.(C) No.3106 of 2017
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Dated this the 12th day of December, 2017
J U D G M E N T
The prayers in this Original Petition(Civil) filed under Article 227 of the Constitution of India are as follows:
"i) Call for the records which leads to the issuance of Exhibit-P3 and to set aside same;
ii) To direct court below to pass appropriate orders in O.S.No.142/2015 as per the provisions contained in Order VIII Rule 10 of the Code of Civil Procedure and to pronounce judgment on the facts and circumstances of the case."
2. Heard Sri.N.James Koshy, learned counsel appearing for the petitioner and Sri.M.R.Sabu, learned Senior Government Pleader appearing for the respondent State of Kerala. Order under challenge in this original petition is the one rendered by the trial court concerned as per Ext.P3, whereby the written statement filed by the defendant therein (State of Kerala) had been accepted. The objection raised by the petitioner is that the said written statement has been filed beyond the time limit of 90 days stipulated in Order VIII, Rule 1 of the Code of Civil Procedure. Further, it is urged by the learned counsel appearing O.P.C.No.3106/2017 2 for the petitioner that a mere reading of the impugned order would disclose that there no application of mind from the part of the court below as to the factors which made the court accepting the written statement which has been admittedly filed beyond the prescribed time limit. Sri.M.R.Sabu, learned senior Government Pleader appearing for the petitioner has submitted on the basis of the counter affidavit filed in this case about the facts of the case and that lack of coordination between the officers concerned in getting instructions and that this prevented the officer concerned in disclosing the reasons for the delay in the submission of the written statement. It is also been stated in paragraph No.5 of the said counter affidavit filed by the State that the Government Pleader concerned and the Deputy Collector concerned are omitted to state the facts of the case in detail in Ext.P1 affidavit and that detailed enquiry will conduct with respect to the negligence of the officers concerned in not filing proper affidavit before the court below and that the deponent of the present affidavit had taken charge of District Collector, Palakkad only on 24.08.2017 and further he has assured this Court that he would take necessary steps to protect O.P.C.No.3106/2017 3 the interest of the Government and to prosecute the cases pending in Civil Courts against the Government in Palakkad District.
3. Heard Sri.M.R.Sabu, learned senior Government Pleader appearing for the State of Kerala has placed strong reliance on the judgment of the Apex Court in Sambhaji and others v. Gangabai and others [(2008) 17 SCC 117], copy of which has been incorporated as Ext.R1(a) along with the counter affidavit filed, wherein it has been held that the nature of the provision contained in Order VIII Rule 1 CPC is essentially procedural in nature and that it is not part of substantive law and the procedural law is not considered as mandatory and that the procedural law is substantive to and is an aid to justice, and that it is similar fact situation the Apex Court had repelled the similar contentions as the one raised in the present original petition. Having regard to the facts and circumstances in this case this Court is not inclined to interfere in this matter, especially in view of the dictum laid down by the Apex Court in Sambhaji's case (supra). The State of affairs in respect of the preparation of Ext.P1 affidavit is far from satisfactory as has O.P.C.No.3106/2017 4 been candidly admitted by the District Collector concerned who is the deponent of the counter affidavit filed in this case. Sri.M.R.Sabu, learned senior Government Pleader appearing for the respondent State of Kerala has assured this Court that strict instruction has been given to the officers concerned to ensure that laches of the present nature are to be avoided in future and appropriate remedial measures should be taken in the matter etc. Sri.M.James Koshy, learned counsel apperaing for the petitioner would submit that in case this court did not inclined to grant the main prayer in this original petition, then this Court may moderate the grant of relief by ordering that the main matter in O.S.No.142 of 2015 now pending on the file of the Court of Principal Subordinate Judge, Palakkad is finally disposed of without much delay. Sri.M.R.Sabu, learned senior Government Pleader appearing for the respondent State of Kerala has raised serious objection to the said cause of action proposed by the learned counsel for the petitioner. Accordingly, it is ordered that the Principal Sub Judge, Palakkad is directed to ensure that O.S.No.142 of 2015 is taken up for consideration and disposal without much delay, preferably within a period of six to O.P.C.No.3106/2017 5 eight months from the date of production of a certified copy of this judgment, provided there are no other impediments for achieving the said target. Petitioner will produce a certified copy of this judgment before the court below concerned for necessary action.
With these observations and directions, the above Original petition (Civil) will stand disposed of.
Sd/-
(ALEXANDER THOMAS, JUDGE) TRUE COPY P. A TO JUDGE DG O.P.C.No.3106/2017 6