'Courts Created To Adjudicate Substantial Interest Of Parties, Not Dispose Cases In Numerical Quantity': Kerala High Court

The Kerala High Court recently said that a solitary instance of absence of a counsel or party on the day the case is listed cannot be a ground for the application being dismissed for default. 

The division bench of Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen said:

"The courts are created to adjudicate substantial interest of the parties rather than to dispose the cases in a numerical quantity. The court should be very sensitive in dealing with the cases of litigants, especially, many of the cases are remained non represented due to laches or negligence on the part of the counsel".

The court made the observations in its decision on the appeals filed by an execution applicant, whose application was dismissed on default in August 2017 by the execution court. His application for restoration of the case with an application to get the delay condoned was dismissed.

The Court said when the case was listed, there was no representation for the appellant. "It is noted by the execution court that steps were not taken and the petitioner was called absent. Accordingly, the application was dismissed for default," it said.

Observing that on mere absence of a counsel or party, the court ought not have dismissed an application unless it was listed for their appearance, the court said:

"It is not a case, where the court recorded continuous absence of the parties before the execution court:.

The bench said the executive court committed a grave error in dismissing the petition without noting that there was negligence in prosecuting the application.

"It is to be noted that in execution, there is no procedure of listing the cases for a trial with an advance list and there was no direction of the court for the appellant/petitioner to be present for hearing of the case. Therefore, the execution court could not have dismissed the application for non appearance," it observed. 

The Court thus set aside the impugned order, and directed the parties to to appear before the execution court on December 14. It also directed the court to conclude the proceedings within three months thereon. 

Advocates AVM Salahudin, A.D. Divya, M.P. Seetha, Emil Stanley, and Juhi A. Salahudeen appeared on behalf of the Appellant in the two appeals, while Advocate Rajesh Sivaramankutty appeared on behalf of the 1st respondent Radhakrishnan in FAO 23 of 2020. 

Case Title: Muhammed Shanavas v. Radhakrishnan & Ors. 

Citation: 2022 LiveLaw (Ker) 618

Click Here To Read/Download The Judgment