IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR FRIDAY, THE 15TH FEBRUARY 2008 / 26TH MAGHA 1929 CMA.No. 39 of 1997() ------------------------------ (AGAINST I.A. NO.1493 OF 1995 IN OS.83/1987 OF II ADDL.SUB COURT,KOZHIKODE) .................... APPELLANT - PETITIONER - PLAINTIFF: ---------------------------------------------------- ALLAHABAD BANK, PALAYAM ROAD, KOZHIKODE, REPRESENTED BY ITS BRANCH MANAGER. BY ADV. SRI.V.B.UNNIRAJ RESPONDENTS - RESPONDENTS - DEFENDANTS: ------------------------------------------------------------------ 1. M/S. SATCHANDRA PRINTER, E.P. NO.10/68, AMBALAPADY P.O., ERANHIIKKAL, KOZHIKODE. 2. MR. G.S. VARIYAR, 17/3, BIRLAKOOTAM, QUARTERS P.O., MAVOOR, KOZHIKODE. 3. I.K. SATHINADHAN, ILLATHKANDI HOUSE, P.O. WEST HILL, KOZHIKODE. 4. K.V. CHANDRASEKHARA KURUP, m/S. PAWN BROTHERS (P) LTD. B26A STREE NO.9 A.P.G. AREA, NEW ROHILCK ROAD, NEW DELHI - 5. 5. I.K. VISWANATHAN, SAPNA NIVAS, P.T. HOUSE, COMPOUND P.O., KALLIMUNNU, KANNOOR. 6. M. KARUNAKARAN, PHARMACHIST, “KALPANA”, P.O. WEST HILL, KOZHIKODE. BY ADV. SRI.K.P.DANDAPANI P.RAMAKRISHNAN SRI.N.JAMES KOSHY THIS CIVIL MISC. APPEAL HAVING BEEN FINALLY HEARD ALONG WITH CRP NO.954 OF 1997 CRP NO.1896 OF 1996 ON 15.2.2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. PADMANABHAN NAIR, J. = = = = = = = = = = = = = = = = = = = C.M.A. NO. 39 OF 1997, C.R.P. NO. 1896 OF 1996 AND C.R.P. NO. 954 OF 1997 = = = = = = = = = = = = = = = = = = = Dated this the 15th day of February, 2008 J U D G M E N T -------------------- All the above cases are filed by the Allahabad Bank, Kozhikode, who was the plaintiff in O.S. No.83 of 1987 on the file of the Sub Court, Kozhikode. Appellant filed the suit against the respondents for realisation of money. Suit happened to be dismissed for default on 22.8.1990. Initially appellant filed I.A. No.2725 of 1990 for restoring the suit dismissed for default. That application was dismissed for default on 27.5.1992. Thereafter appellant filed I.A.Nos.4279 and 4280 of 1993 for restoring the suit after condoning the delay in filing the restoration application. Subsequently, appellant filed I.A. No.1491 of 1995 to withdraw I.A. Nos.4279 and 4280 of 1993. He also filed I.A. No.1492 to restore I.A.No.2725 of 1990 and I.A. No.1493 of 1995 to condone the delay in filing the restoration application. Learned Sub Judge dismissed all the three applications by a C.M.A. NO.39 OF 1997, C.R.P. NO.1896 OF 1996 & C.R.P. NO.954 OF 1997 -: 2 :- common order. The C.M.A. is filed against the order passed in I.A. No.1493 of 1995, C.R.P. No.954 of 1997 is filed against the order in I.A. No.1492 of 1995 and C.R.P. No.1896 of 1996 is filed challenging the order passed in I.A. No.1491 of 1995 which was filed for withdrawing I.A. Nos.4279 and 4280 of 1993. 2. Short facts necessary for the disposal the cases are as follows: Appellant-Bank advanced a loan to the respondents in the year 1981. Suit was filed in the year 1987 for realisation of Rs.2,11,889.42. Advocate Shri V.V.Rajchandran was appearing for the appellant/plaintiff. Suit came up for trial on 22.8.1990. On that day appellant and counsel were absent. So suit was dismissed for default on that day. On 14.9.1990, i.e. to say within 30 days from the date of dismissal of the suit, appellant filed an application, I.A. No.2725 of 1990, under Order IX Rule 9 of the Code of Civil Procedure through Advocate Shri Rajchandran for restoring the suit which was dismissed for default. That petition was also dismissed for default on 27.5.1992. Thereafter on 6.12.1993 appellant filed I.A. Nos.4279 and 4280 of 1993. C.M.A. NO.39 OF 1997, C.R.P. NO.1896 OF 1996 & C.R.P. NO.954 OF 1997 -: 3 :- I.A. No.4280 of 1993 was filed under Order IX Rule 9 CPC for restoring the suit which was dismissed for default and I.A. No.4279 of 1993 was filed under Section 5 of the Limitation Act for condoning the delay in filing the restoration application. Those I.As. were posted for evidence on 9.3.1995. On that day the Manager of the appellant was examined as P.W.1 in the I.As. At that time P.W.1 was cross examined with reference to the averments contained in I.A. No.2725 of 1990 to which he pleaded ignorance. On 13.3.1995 appellant filed I.A. No.1491 of 1995 for withdrawing I.A. Nos.4279 and 4280 of 1993. It also filed I.A. No.1493 of 1995 for restoring I.A. No.2725 of 1990 and I.A. No.1492 of 1993 for condoning the delay in filing I.A. No.1493 of 1995. No further evidence was taken. Learned Sub Judge dismissed all the three applications by a common order. Challenging that common order, the CMA and CRPs. are filed. 3. Learned counsel appearing for the appellant has argued that the court below ought to have allowed I.A. No.1491 of 1995 which was filed for withdrawing I.A. Nos.4279 and 4280 of 1993. It is argued that the court below C.M.A. NO.39 OF 1997, C.R.P. NO.1896 OF 1996 & C.R.P. NO.954 OF 1997 -: 4 :- failed to note that there was absolutely no suppression of facts. But there was a bona fide mistake to mention about the filing of the earlier application in the second application. It is argued that even accepting the contentions of the respondents that I.A. No.2725 of 1990 was dismissed, still I.A. No.4280 of 1993 was perfectly maintainable and there was no statutory bar in filing successive interlocutory applications for restoring the suit. It is argued that the first application for restoration was dismissed for default and there was no decision on merits and hence that decision will not operate as res judicata. 4. Learned counsel appearing for the respondents has argued that a reading of the averments in paragraphs 3 and 4 of I.A. No.2725 of 1993 would show that they are the verbatim copy in the second application which evidently shows that the party and counsel were aware of the earlier applications. It is argued that no grounds are made out to condone the delay in filing the restoration application. It is argued that if the application is allowed, I.A. No.2725 of 1993 will be restored to file and that application is to be considered on its merits C.M.A. NO.39 OF 1997, C.R.P. NO.1896 OF 1996 & C.R.P. NO.954 OF 1997 -: 5 :- again. It is argued that if the suit is restored, the respondents will have to pay interest for more than a decade for no fault of them. 5. I have perused the entire records. Suit was dismissed on 22.8.1990. On 14.9.1990 appellant filed I.A. No.2725 of 1990 under Order IX Rule 9 CPC for restoring the suit which was dismissed for default. That application was also dismissed for default on 27.5.1992. After a lapse of about six months, plaintiff filed I.A. Nos.4279 and 4280 of 1993 again for restoring the suit, after condoning the delay in filing the restoration application. The proper procedure ought to have been to file applications for restoring I.A. No.2725 of 1990 after condoning the delay. But that was not done. In the subsequent application there was no mention about the dismissal of the earlier application. When P.W.1 was examined on 9.3.1995 it had come out that appellant had filed I.A. No.2725 of 1990 which was dismissed for default. Within four days appellant filed I.A. Nos.1491, 1492 and 1493 of 1995 from which the present appeal and revisions arise. 6. It is seen that the learned Sub Judge has passed an C.M.A. NO.39 OF 1997, C.R.P. NO.1896 OF 1996 & C.R.P. NO.954 OF 1997 -: 6 :- order on 14.9.1995 dismissing I.A. Nos.4279 and 4280 of 1993 as not maintainable in view of the filing of I.A. No.2725 of 1990. Learned Sub Judge considered I.A. No.1491 of 1995 on its merits. Learned Sub Judge went wrong in dismissing I.A. Nos.4279 and 4280 of 1993 after entertaining I.A. No.1491 of 1995 which was filed under Order XXIII Rule 1 CPC for withdrawing those two applications. The Sub Judge should have considered and disposed of I.A. No.1491 first and thereafter disposed of I.A. Nos.4279 and 4280 of 1993. It is doubtful whether I.A.Nos.4279 and 4280 of 1993 were disposed of on the date on which those applications were stated to have been dismissed. Any way, for the purpose of deciding these matters it is not necessary to consider those aspects. In I.A. Nos.1492 and 1493 of 1995 appellant had stated all facts relating to the litigation. Exhibit A2 is the letter written by the lawyer who appeared for the appellant in the court below in his own handwriting in which he had informed the Bank that he was unable to attend the court and his Clerk disappeared with the case bundle and the appellant/Bank will have to make alternate arrangements for C.M.A. NO.39 OF 1997, C.R.P. NO.1896 OF 1996 & C.R.P. NO.954 OF 1997 -: 7 :- conducting the litigation. Learned Sub Judge failed to note that a litigant cannot be punished for the illness of his lawyer. Of course, the appellant could have filed I.A. No.4279 and 4280 of 1993 for restoring I.A. No.2725 of 1990. The appellant could have filed a petition under Order VI Rule 17 CPC to amend the pleadings as well as the reliefs in I.A. Nos.4279 and 4280 of 1993 for restoring I.A. No.2725 of 1990, which was dismissed for default. 7. In view of the dismissal of I.A. Nos.4279 and 4280 of 1993, it is not necessary to consider I.A. No.1491 of 1995 on its merits. So the Civil Revision Petition filed against that order is only to be dismissed. 8. Now I shall consider whether the dismissal of I.A. Nos.4279 and 4280 of 1993 is a bar for entertaining I.A. Nos.1492 and 1493 of 1995. The prayer in the other applications was to restore the suit after condoning the delay. In spite of the pendency of I.A. No.1491 of 1995, those applications were dismissed holding that those applications were not maintainable in view of the filing of I.A. No.2725 of 1990. The scope of enquiry in the present applications and C.M.A. NO.39 OF 1997, C.R.P. NO.1896 OF 1996 & C.R.P. NO.954 OF 1997 -: 8 :- I.A. Nos.4279 and 4280 of 1993 are different. The order passed in those I.As. will not operate as res judicata. There is no bar under Order II Rule, 2 CPC also. 9. The next question arising for consideration is whether the appellant had shown sufficient cause for restoring I.A. No.2725 of 1990. It is true that that application was dismissed on 27.5.1992 and I.A. No.1493 of 1995 was filed only on 13.3.1995 with a petition to condone delay. In paragraph 3 of the application it was admitted that the suit was dismissed on 22.8.1990 and appellant filed I.A. Nos.4279 and 4280 for restoring the suit after condoning the delay in filing the restoration application. In that proceedings the Manager of the appellant/bank was examined as P.W.1 on 9.3.1995. In paragraph 4 of the affidavit it was stated that the lawyer who was appearing for the appellant was laid up and he was unable to attend the court. It was also stated he was not attending the court for about 4 to 5 years and his Clerk disappeared with the case bundle. It was also averred that the appellant was under the impression that posting of the suit on 22.8.1990 was only a formal posting and it was not C.M.A. NO.39 OF 1997, C.R.P. NO.1896 OF 1996 & C.R.P. NO.954 OF 1997 -: 9 :- necessary to appear on that day. Filing of I.A. No.4279 was also referred to. P.W.1 had stated that the present Manager of the Bank was unaware of the filing of I.A. No.2725 of 1990 as papers were missing from the office of the Bank. Considering the fact that the appellant-plaintiff is a Bank, I am of the view that the court below ought to have condoned the delay in filing the petition for restoration and allowed I.A. No.1493 for restoring I.A. No.2725 of 1990. 10. In the normal course the order is to be passed in restoring I.A. No.2725 of 1990 back to file. If such an order was passed it is likely to delay the matter further. More than 12 years already elapsed. So I am of the view that that application can also be considered and disposed of on its merits. It is true that there was negligence on the part of the appellant in not appearing before the Court on the date on which the case was posted for trial. There was failure to appear in court on the date on which the application was posted for enquiry also. The application was signed by the Manager of the appellant and attested by the lawyer on 14.9.1990. The appellant never bothered to enquire about C.M.A. NO.39 OF 1997, C.R.P. NO.1896 OF 1996 & C.R.P. NO.954 OF 1997 -: 10 :- the whereabouts of the application already filed but again filed two applications in the year 1993 for restoring the suit which was dismissed for default on 22.8.1990 instead of filing an application to restore I.A. No.2725 of 1990. Even when the mistake was realised instead of amending I.A. Nos.4279 and 4280 of 1993 incorporating the prayer to restore I.A. No.2725 of 1990 after condoning the delay an application was filed for withdrawing those applications. The court below instead of taking hyper technical view could have treated those applications for restoring I.A. No.2725 of 1990. But those applications were dismissed. Application filed for withdrawing I.A. Nos.4279 and 4280 of 1993 was also dismissed. So I am of the view that I.A. Nos.1492 and 1493 of 1995 can be allowed. I am also of the view that instead of remanding I.A. No.2725 of 1990 for fresh consideration, the same can be allowed to do justice between parties. But the respondents shall not be put to difficulties for the negligence of the Bank. So I am of the view that appellant will not be entitled to get interest for the period from 22.8.1990 till the date of decree to be passed in the suit, in case the suit is C.M.A. NO.39 OF 1997, C.R.P. NO.1896 OF 1996 & C.R.P. NO.954 OF 1997 -: 11 :- decreed. Appellant is entitled to get interest prior to 22.8.1990 and from the date of decree. I am also of the view that the appellant should be made liable to pay heavy costs to the second respondent which I quantify as Rs.5,000/-. 11. In the result, the CMA and CRPs. are disposed of in the following manner: C.M.A. No.39 of 1997 which was filed challenging the order passed in I.A. No.1493 of 1995 (petition filed under Order IX Rule 9 CPC) and C.R.P. No.954 of 1997 filed against the order passed in I.A. No.1492 of 1995 (petition filed under Section 5 of the Limitation Act for condoning the delay in filing I.A. No.1493 of 1995) are allowed on condition that the appellant-plaintiff pays or deposits before this Court for payment to the second respondent a sum of Rs.5,000/-, within three weeks from today. In case costs is paid or deposited as ordered above, the order passed by the court below in I.A. No.1492 of 1995 and I.A. No.1493 of 1995 will stand set aside and those applications will stand allowed. In that event, I.A. No.2725 of 1990 will stand restored to file and that application will stand allowed and the suit will be restored to file. If the costs is not paid or deposited as C.M.A. NO.39 OF 1997, C.R.P. NO.1896 OF 1996 & C.R.P. NO.954 OF 1997 -: 12 :- ordered above, the order passed by the court below in the above applications will stand confirmed and CMA No.39 and CRP No.954 of 1997 will stand dismissed. 12. C.R.P. No.1896 of 1996 shall stand dismissed. 13. It is made clear that even if the suit is ultimately decreed, the appellant will not be entitled to get interest from 22.8.1990 till the date of decree. In case the suit is restored to file, there will be a direction to the Sub Court, Kozhikode to dispose of the suit as expeditiously as possible, at any rate, within six months from the date of appearance of the parties before it. 14. Parties are directed to appear before the Sub Court, Kozhikode on 24.3.2008. Post on 10.3.2008 for compliance. K. PADMANABHAN NAIR, JUDGE. vsv K. PADMANABHAN NAIR, J. ===================== C.M.A. NO. 39 OF 1997, C.R.P. NO. 1896 OF 1996 AND C.R.P. NO.954 OF 1997 ===================== J U D G M E N T ------------------------------------------- 15TH FEBRUARY, 2008