The petitioner is the complainant in O.S.No.936/90 on the files of the Court of Subordinate Judge, Thrissur, as well as the petitioner in I.A.No.6083/2000 filed in I.A.No.990/2000 in the above O.S. The above Original Suit was one for partition and for permanent prohibitory injunction. I.A.No.990/2000 is a petition to restore the Original Suit, which was dismissed for default. The suit was listed for trial on 19/2/2000. According to the petitioner, since a close relative expired on that day, he could not appear before court for trial. The learned counsel filed I.A.No.947/ 2000 praying to adjourn the trial. But the C.R.P. No. 2598 of 2002 -: 2 :-
suit was dismissed on 19/2/2000. He filed I.A.No.990/2000, praying for the restoration of the suit. That petition was posted to 4/11/2000. Since there was no sitting on that day, the case was adjourned to 7/11/2000. Since the complainant was not present on 7/11/2000, I.A.No.990/2000 was dismissed. There is no wilful laches on the part of the petitioner and hence I.A.No.6083/2000 was filed to restore I.A.No.990/20000 on the files.
2. Respondents 2 and 3 filed counter affidavits denying the averments in the petition and opposed the application. An enquiry was conducted and PW.1 was examined. After considering the evidence on record, the learned Sub Judge dismissed the application. The legality and propriety of the findings on which the application had been dismissed is under challenge in this revision petition. Respondent No.8, in this revision petition, also filed a counter affidavit opposing the Civil Revision Petition.
3. The learned counsel for the revision petitioner submits that the counsel, who appeared for the petitioner before the trial court had committed a mistake, in noting the posting date and he himself filed an affidavit admitting his C.R.P. No. 2598 of 2002 -: 3 :-
mistake. But the court below dismissed the application on a finding that the concerned counsel who filed the affidavit has not been examined in evidence. It is also found that the name of the relative who is said to have been expired is not disclosed in the petition. The sum and substance of the argument is that the court below has taken a rigid view, despite the settled legal position that in the matter of restoration, the court is inclined to take a liberal view, for the interest of substantial justice.
4. Per contra, the learned counsel for the for the respondents advanced arguments to justify the findings in which the court below has dismissed the application.
5. Going by the impugned order, as submitted by the learned counsel for the petitioner, I.A.No.6083/2000 has been dismissed on the ground that the concerned counsel, who filed the affidavit, had not been examined and the name of the relative, who died on the date of trial, was not disclosed in the affidavit. Though I cannot find fault with the court below, I am inclined to take a lenient view, in a different perspective. The application is seen filed within the period of limitation and the application happened to be C.R.P. No. 2598 of 2002 -: 4 :-
dismissed on the laches from the part of the counsel only. The parties cannot be made to suffer due to the laches or negligence or default from the part of the counsel. When substantial justice and technical considerations are pitted against each other, substantial justice deserves to be preferred rather than the technical considerations.
6. In the above view, I am inclined to allow I.A.No.6083 of 2000 on condition. The petitioner shall pay a cost of `5,000/- (Rupees five thousand only) to the respondents within a period of one month from today and if the petitioner complies the above direction within the stipulated time, the court below shall restore I.A.No.6083 of 2000 in I.A.No.990/2000 in O.S.No.936/1990 on the files and proceed in accordance with law. The cost can be paid to the party or to the counsel.
This revision petition is allowed in the above terms.
Sd/-
(K. HARILAL, JUDGE) Nan/ //true copy// P.S. to Judge