Back
2021 Supreme(Online)(KER) 10905
HIGH COURT OF KERALA
SULOCHANA BALAKRISHNAN – Appellant
Versus
RAMASWAMY – Respondent
FAO/58/2019
SRI.S.SREEKUMAR (SR.), SRI.P.MARTIN JOSE, SRI.P.PRIJITH, SRI.THOMAS P.KURUVILLA
A party must personally verify affidavits in interlocutory applications, and sufficient cause for delay is essential for restoring dismissed suits.
Headnote:
Civil Law - Suit for Partition - Civil Procedure Code - Sections on Affidavit and Restoration - The court highlighted the requirement for a party to file an affidavit when seeking restoration and the importance of demonstrating sufficient cause for delay, ultimately allowing the appeal to ensure a meritorious matter is heard.
Fact of the Case:
The plaintiffs filed for partition but their suit was dismissed for non-appearance. They later sought to restore the suit after 80 days, which was denied due to lack of an affidavit from the party and insufficient cause for delay.
Finding of the Court:
The court found that the lower court erred in dismissing the applications. It acknowledged the incompetence of an erstwhile lawyer to swear an affidavit and deemed the plaintiffs' grievances against their previous counsel as valid ground for considering the restoration.
Issues: Whether the lower court correctly dismissed the applications for restoring the suit and condoning the delay based on affidavit requirements and sufficient cause.
Ratio Decidendi: A meritorious matter should not be dismissed solely on procedural grounds, especially where issues gravely affecting the parties are at stake and where sufficient cause can be established.
Final Decision: The appeal is allowed, and the lower court's order is set aside.
JUDGMENT
A.Hariprasad,J.
Heard the learned counsel for appellants and the learned senior counsel appearing for respondents. Aggrieved by a common order passed by the Addl. Sub Judge, Palakkad on IA Nos.692/2017 & 693/2017 in O.S.No.399 of 2013 the plaintiffs are before this Court in appeal.
2. The appellants filed a suit for partition before the trial court. When the matter was posted for taking steps, the plaintiffs failed to appear before the court and also to take steps. Hence the suit was dismissed. With a delay of 80 days, the plaintiffs approached the trial court with two applications; one for restoring the suit and the other to condone delay in filing the restoration application. Both applications were dismissed by the common order finding mainly that the party himself did not swear to an affidavit, instead the erstwhile lawyer has sworn to the affidavit. Moreover, the court below found that there was no sufficient cause shown for condoning the delay.
3. Learned senior counsel contended that the Civil Rules of Practice insists that the party should file an affidavit in interlocutory applications and the erstwhile lawyer is incompetent to swear to on behalf of the parties. It is true, ideally the party should have shown sufficient cause for condoning the delay. Learned counsel for the appellants pointed out that this is a case where the party has grievance against the erstwhile lawyer for not prosecuting the matter properly. That is one of the reasons why he himself filed an affidavit. It is understood from the contentions raised by both sides that there are serious issues to be tried and decided in the suit. Having regard to the fundamental principle that a meritorious matter shall not be thrown out at the threshold, we are inclined to allow the appeal and set aside the order passed by the court below in the aforementioned interlocutory applications.
In the result, this appeal is allowed. The impugned common orders are hereby set aside. The court below is directed to proceed with the matter and decide the case in accordance with law. The parties shall appear before the court below on 22.2.2021.
A.HARIPRASAD, JUDGE
