A poor woman, menial labourer, had chosen to purchase a Lottery ticket of the 679th Periyar Weekly Lottery, run by the Kerala Government, on 26.4.2004 with her hard earned money of `10/-. As usual, she had noted down the number of the lottery ticket in a diary kept at her house. When the results were declared, the poor woman without knowing or verifying the actual price amount won by the ticket, approached the second defendant/lottery agent with the ticket. He obtained the ticket and told her that she won `100/-. She happily accepted the amount of `100/- and handed over the ticket. 2. On the next day morning, when the results were published in the newspaper, her grand-daughter, who verified the number of the ticket purchased, with the number of the ticket which won the first price, could find that the ticket had won the first price for `20,00,000/-. The screaming woman rushed to the second defendant and demanded the ticket or the price money. He was not ready and willing to return the lottery ticket by telling her that he had presented the ticket for encashment at the lottery office. The matter resulted in a wordy altercation, which ultimately resulted in the registration of a crime.
3. In the meantime, the first defendant came up with the said lottery ticket and claimed the price amount by stating that he had purchased the lottery ticket from Kannur. It has to be noted that the said lottery ticket was presented for payment at a Co- operative Bank at Thiruvananthapuram. As there was a crime and ongoing litigations, the amount was not disbursed. The appellant herein, had approached the Subordinate Judge's Court, Neyyattinkara, initially with a suit for injunction as O.S. No.94 of 2006, thereby seeking a decree for perpetual injunction restraining the defendants from collecting the price amount of the ticket. Subsequently, during the pendency of the suit, the first defendant approached this court through W.P.(C) No.26427 of 2005. Vide judgment dated 24.11.2005, this court directed the release of price amount to the first defendant, with an observation that the first defendant will be bound by the orders of the civil court in the matter.
4. As the amount was disbursed, the appellant had rightly thought it fit to get her plaint amended, in such a way as to incorporate the relief of declaration and recovery of money, for which application seeking amendment was filed, as I.A. No.681 of 2007. The said interlocutory application happened to be dismissed for default. An application for restoration was filed, as I.A. No.1109 of 2009. It seems that the court below has dismissed the said I.A. for restoration, on the ground that the same was not pressed by the counsel for the appellant. On enquiries, it was revealed that such an endorsement on the I.A. was not made by the counsel appearing for the plaintiff before the court below; whereas, it was made by some other advocate, who was a total stranger with the name Anil Kumar. Things were manipulated in such a way that the appellant had lost the opportunity to get her plaint amended. Finally, the court below has chosen to dismiss the suit (O.S. No.94 of 2006) as infructuous through the impugned judgment.
5. Heard the learned counsel for the appellant, Shri.R.S. Kalkura and Shri.S. Mohammed Al Rafi, learned counsel for the second respondent.
6. It has clearly come out that I.A. No.1109 of 2009 filed before the court below by the appellant, happened to be dismissed solely based on an endorsement made by a counsel named Anil Kumar that it was 'not pressed'. Admittedly, the said person, named Anil Kumar, Advocate had never appeared for the plaintiff before the court below. The court below ought not to have accepted any such an endorsement made by a stranger in order to dismiss the I.A. The court below has gone wrong in dismissing the said I.A. It seems that the appellant had every right to get the I.A. restored. The court below ought to have restored the I.A. seeking amendment of the plaint and to dispose of I.A. No.681 of 2007, on merits. I.A. No.2194 of 2009 was also filed for amending the valuation. The dismissal of I.A. No.1109 of 2009 for the restoration of I.A. No.681 of 2007 had resulted in substantial miscarriage of justice. The dismissal of the said I.A. has resulted in dismissal of the suit before the court below as infructuous. It seems that there is total failure of justice on account of the dismissal of I.A. No.1109 of 2009, as aforesaid.
In the result, the present appeal is allowed and the impugned judgment and decree are set aside. The matter is remitted back to the court below. I.A. No.681 of 2007 stands restored. The court below shall hear I.A. Nos.681 of 2007 and 2194 of 2009 and pass appropriate orders and proceed with the matter, in accordance with law. There is no order as to costs.
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B.KEMAL PASHA, JUDGE dl // TRUE COPY // PA to Judge