IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE MONDAY, THE 30TH JULY 2007 / 8TH SRAVANA 1929 WP(C).No. 18753 of 2005(G) -------------------------- PETITIONER: ------------ PHILIP GEORGE, T.C.31/899, MOSQUE LANE, PETTAH, THIRUVANANTHAPURAM, REP. BY HIS POWER OF ATTORNEY HOLDER K.V.GEORGE, TC.31/505, Y.M.C.A. ROAD, CHAKKAI, TRIVANDRUM. BY ADV. SRI.RAM MOHAN.G. RESPONDENTS: ------------- 1. MAGI JOHN, T.C.13/1309-1, CHAMPION BHASKARAN ROAD, KUNNUKUZHY, THIRUVANANTHAPURAM. 2. DR.M.V.JOHN, T.C.13/1309-1, CHAMPIAN BHASKARAN ROAD, KUNNUKUZHY, THIRUVANANTHAPURAM. BY ADV. SRI.R.S.KALKURA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/07/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT MR.R.S.KALKURA, COUNSEL FOR THE RESPONDENTS IS READY. NO REPRESENTATION FOR THE PETITIONER. THE WRIT PETITION WILL STAND DISMISSED FOR DEFAULT. 30.7.2007 SD/- PIUS C.KURIAKOSE, JUDGE. SRD (TRUE COPY) P.A. TO JUDGE. PIUS C. KURIAKOSE, J. ------------------------------- W.P.(C) No. 18753 OF 2005 ----------------------------------- Dated this the 14th day of August, 2007 JUDGMENT The plaintiff in a suit for recovery of money is aggrieved by Ext.P7 common order passed by the court below on Exts.P2 and P3 applications filed respectively for restoration of a copy application for getting copy of the judgment and decree and for condoning the delay of 4 years and 8 days in preferring the restoration application. The suit was dismissed by the trial court on 09.04.99. The petitioner filed copy application as A No.917/99 for obtainment of certified copy of the judgment and decree. The registry of the court had called for stamp papers and printing charges on 17.11.99. According to the petitioner, printing charges were not paid due to an inadvertent omission. The omission could not be noticed either by the plaintiff or his counsel who remained under a wrong impression that printing charges were also remitted along with the requisite stamp papers for preparing the decree. The mistake could be found out only when enquiries were made to the Registry during the month of January 2004. Then it was revealed that the copy application A No.917/99 was dismissed on 14.12.99 for want of production of printing charges. Immediately thereafter, Ext.P2 IA for restoration of the copy application and Ext.P3 IA for condonation of the WPC No. 18753 of 2005 2 delay caused in the matter of filing of Ext.P2, were filed. To Exts.P2 and P3, the respondents filed Exts.P4 and P5 objections. The counsel who was appearing for the petitioner also filed a separate affidavit, Ext.P6, in support of Exts.P2 and P3. 2. The grievance of the petitioner is that though it was appealed to the court below to take a lenient view, considering the totality of the circumstances attending on the case, the court below dismissed the application taking the view that sufficient cause was not made out for not pursuing copy application, A No.917/99, by remitting printing charges and that the delay of 4 years and 8 days had not been explained in a convincing manner. Ext.P7 is the common order dismissing Exts.P2 and P3. Ext.P7 is challenged on various reasons and the prayer in the Writ Petition is that Ext.P7 be quashed and Exts.P2 and P3 applications be allowed. 3. A very serious counter affidavit has been filed to the Writ Petition by the respondent. It is contended therein that the petitioner’s claim that he came to know about the dismissal of the copy application No.A.917/99, on 21.05.99 only, after 4½ years is unbelievable. It is pointed out that in the affidavit in support of Exts.P2 and P3, it is not stated at all by the petitioner that the fault was on account of a lapse in his counsel’s office. It was only after Exts.P4 and P5 objections and yet WPC No. 18753 of 2005 3 another detailed counter affidavit, Ext.R2(a) dt.09.02.04 were filed by the respondent that the petitioner’s counsel filed Ext.P6 affidavit mentioning that his office is responsible for the default. Ext.P6 was actually a belated after thought to help the petitioner somehow or other. More seriously, it is contended that both the petitioner and his counsel are guilty of having suppressed a very material fact. It is pointed out that a second copy application as A No.2565/99 for printing copy of the judgment had been filed on 25.11.99. That application was filed after noting that printing charges on the first copy application was to be remitted on or before 24.11.99. Ext.R2(b) is copy of the above subsequent copy application. Ext.R2(b) was also rejected by the court for non-payment of the printing charges, on 14.06.00. It is pointed out that Ext.R2(b) was suppressed not only before the court below but also from this court. The hands of the petitioner who has suppressed material facts are not clean and such a person is not entitled for any relief under the extraordinary constitutional jurisdiction of this Court which is founded on discretion. The legislative objects underlying the stipulation of specified period as periods of limitation for specified causes is highlighted by the respondent in this counter affidavit. Due to expiry of the period of limitation, remedy of appeal has become barred to the petitioner. Such barring is a very valuable right which has WPC No. 18753 of 2005 4 accrued in favour of the respondent and this court is not expected to deprive the respondent of that right by exercising discretionary jurisdiction in favour of somebody who by his own conduct has become disentitled to get such exercise. It is then contended that very serious prejudice will be occasioned to the respondent by allowing Exts.P2 and P3. The suit, it is pointed out that, commenced in the year 1989. Both the respondents are senior citizens. The 1st respondent now aged 66 and the 2nd respondent now aged 70. Both of them are cardiac patients. The prolonged litigation had a negative effect on the mental and physical health of the respondents and it will be sheer injustice to permit the petitioner to revive a case which has become stale. 4. It was very fervent and appealing submissions which were addressed before me by Sri.G.Rammohan, counsel for the petitioner. The trump card of Mr.Rammohan was Ext.P6 affidavit filed by the petitioner’s counsel in the court below in support of Exts.P2 and P3 . The deponent of Ext.P6, I was informed, is a senior member of the Thiruvananthapuram Bar whose integrity as a member of the legal profession has always been above board. My attention was drawn by Mr.Rammohan to the claim in Ext.P6 that instances like one on hand, i.e., copy applications being rejected due to non-remittance of printing charges on time and restoration applications being necessitated was the WPC No. 18753 of 2005 5 first one in the long unblemished professional career of the learned counsel. Sri.Rammohan very fervently appealed to me to show indulgence and allowing the applications by imposing any proper condition. 5. Sri.R.S.Kalkuara, learned counsel for the respondent did not dispute Sri.Rammohan’s claims regarding the credibility and the professional track record of the deponent of Ext.P6 affidavit. He would, however, very stiffly resist the appeals of Mr.Rammohan for relief. Reading over to me the full text of the impugned order, Mr.Kalkura submitted that by all standards the impugned order is a well reasoned one which is not liable to be interfered with by this Court. Mr.Kalkura reminded me of the contours of this Court’s supervisory jurisdiction and submitted that the said jurisdiction is not to be invoked for correcting each and every order passed by a Subordinate Court. Facts have been marshalled corrected by the court below which was given good reasons for deciding why the discretionary jurisdiction under Section 5 was not being exercised in favour of the petitioner. There is no warrant at all for setting aside the impugned order. 6. I have considered the rival submissions addressed at the Bar. I agree with Mr.Kalkuara that ordinarily this court will not be justified in interfering with Ext.P7 within the narrow contours of its supervisory WPC No. 18753 of 2005 6 jurisdiction under Article 227. It cannot be said that Ext.P7 is vitiated by any error of law and much less by any error of jurisdiction. It also cannot be said that Ext.P7 results in gross injustice or failure of justice warranting immediate invocation of the supervisory jurisdiction. But at the same time, I am of the view that Ext.P6 affidavit which certainly does not make mention of Ext.R2(a), the order rejecting the subsequent copy application discloses, true information. It is not unknown that filing and pursuit of copy applications in the office of a busy trial side lawyer is often, the responsibility of the clerical department and clerks at times make unsuccessful attempts to mind their mistakes without referring them to the lawyer concerned. After all, the petitioner was the plaintiff, however frivolous his claim might have been. Under the scheme incorporated in the Code of Civil Procedure, subject to the provisions of Order XLI Rule 11 regarding the admission, he had a right of appeal. Under the impugned orders that right has been denied to him on account of a fault which was not his. The fault was actually that of a lawyer’s clerk or even that of the lawyer himself. The contentions raised in the counter affidavit and the submissions of Mr.Kalkura regarding the prejudice which will be caused by permitting the parties to resurrect time barred claims are certainly relevant to a great extent. Delay, especially when the same is inordinate, as in the present case is not to be WPC No. 18753 of 2005 7 condoned lightly. Having considered the totality of the circumstances which attend on the case including the hardship which will be occasioned to the respondents who may have to defend an appeal to be filed by the petitioner, I fix a sum of Rs.15,000/- as the proper amount to be paid by the petitioner by way of cost to the respondents as condition for allowing Exts.P2 and P3. I set aside Exts.P7 and allow Exts.P2 and P3 on condition that the petitioner pays a sum of Rs.15,000/- to the respondents either directly or through their counsel in this court within one month of receiving copy of this judgment. Failing such payment, Ext.P7 will stand confirmed and the Writ Petition will stand dismissed. PIUS C. KURIAKOSE, JUDGE btt WPC No. 18753 of 2005 8