Harilal, J.
The petitioner is the 2nd respondent in O.P. No.784/2010 as well as the petitioner in I.A. No.4/2012 and I.A. No. 365/2012 filed therein on the files of Family Court, Kottarakkara. The above Original Petition was preferred by the respondent arraying the petitioner and her son as respondents for recovery of money and gold ornaments. While the case was posted for counseling, the petitioner as well as the 1st respondent in that Original Petition, were set ex-parte by the court below. They preferred I.A. Nos. 3/2012 and 4/2012 under Order IX Rule 7 of C.P.C. I.A. No.3/2012, preferred by the 1st respondent in the Original Petition, was allowed on payment of cost of Rs.10,000/-.
I.A. No.4/2012, preferred by the petitioner, was dismissed by Ext.P4 Order. The petitioner again preferred I.A. No.365/2012 (Ext.P5) to review Ext.P4 Order, which was also dismissed by Ext.P6 Order on 12.6.2012.
2. In this Original Petition it is stated that after 12.6.2012 the case was posted for settlement on several occasions till 26.6.2014. On 26.06.2014 the counsel submitted a report stating that there is no chance for settlement. Since she was in a bonafide belief that the entire issue will be settled in the Mediation, the petitioner has not challenged Ext.P4 or Ext.P6 Orders earlier.
3. I.A. No.4/2012, filed by the petitioner herein, was dismissed by the court below by Order dated 3.2.2012, mainly on the reason that affidavit accompanying the petition does not disclose the name of the Advocate to whom she had entrusted the Vakalath and averments in the affidavit were found to be against facts.
4. The learned counsel for the petitioner submits that due to inadvertent mistake committed by the clerk attached to the office of the counsel appearing before the lower Court, the petitioner could not file Vakalath properly in the above Original Petition. So, there was no Vakalath for the 2nd respondent in the case file, when the Court below ascertained the same. There was no negligence or default in not filing proper Vakalath, as submitted before the Court. The learned counsel urged for an opportunity to contest the matter on merits.
5. Going by the impugned order it is seen that, on verification, there was no Vakalath for the 2nd respondent and the 2nd respondent was absent when the case was taken for hearing. So also, the affidavit does not disclose as to which Advocate she had entrusted the Vakalath. Though, she had filed I.A. No.365/2012 to review the earlier order;
even in the affidavit filed for the same petitioner, has not disclosed proper reason for not filing Vakalath in time. In that context, that petition was also dismissed. Going by the sequence of events, we are of the opinion that we cannot find fault with the Court below for dismissing the petitions.
6. However, we are inclined to take a lenient view in a different perspective. Adjudication of a lis on merits is always desirable than disposal of the same on technicalities. When substantial justice and technical consideration are pitted against each other, substantial justice deserves to be preferred rather than technical consideration. In that view, the petitioner is given a further opportunity to contest the matter on merits on terms. Consequently, the impugned orders under challenge (Exhibits P4 and P6) will stand set aside and I.A. No.4/2012 will stand allowed on condition that the petitioner shall pay Rs.5,000/- (Rupees Five thousand only) as cost to the respondent and produce receipt or memo thereof, before the Court below within one month from today, failing which the impugned order under challenge will stand in force. Needless to say, on compliance of the said condition, the Court below shall proceed with the case and dispose in accordance with law.
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V.K. MOHANAN, JUDGE.
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K. HARILAL, JUDGE.
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