'Wholly Unwarranted': Kerala High Court Criticizes Trial Court's Adverse Observations About Lawyer's Drafting Skills

Justice Easwaran S. opined that trial court's remarks about the lawyer's competence was completely uncalled for and the same required judicial scrutiny:

“the manner in which consideration was undertaken by the trial court is what calls for judicial scrutiny… the trial court appears to have traversed beyond the parameters of judicial evaluation on the merits of the plea made by the plaintiff and went on to comment on the legal acumen of the counsel for the plaintiff and going to the extent of commenting on his comprehension to assimilate the provisions of CPC. The observations made in the impugned order touching upon the competence of the counsel who drafted the application are wholly unwarranted.”

The Court was considering a petition preferred by the plaintiff after the trial court dismissed his suit on the sole ground of failure to take steps for service of summons. The plaintiff/petitioner contended that although he preferred an application to restore the suit for recovery of money, the same was also not properly considered by the trial court.

After hearing the counsel for the petitioner/plaintiff, the Court noted that the trial court had dismissed the suit merely because plaintiff did not fresh steps for service of summons despite repeated directions.

Noting that the trial court had observed that in cases where summons is returned unserved, the plaintiff is required to apply for issuance of fresh summons within 7 days, the Court remarked that this was not the correct position of law.

Referring to a decision in Chandrasekharan K. v. Sasikala and Ors. [2012 (3) KLT 941], the Court remarked that the afore requirement for fresh summons was only directory and not mandatory.

“the trial court ought to have adopted a pragmatic and justice-oriented approach by granting the plaintiff a reasonable opportunity to take fresh steps for effecting service. The dismissal of the suit without extending such an opportunity was manifestly erroneous and resulted in a serious failure of justice,” the Court added.

It also opined that though the affidavit with the restoration petition could have been worded better, the trial court's finding that the plaintiff's remedy was to file a fresh suit was incorrect.

It was of the view that if the trial court felt that the legal position relied on by the plaintiff's counsel was incorrect, it ought not to have commented on the propriety of the same, especially since it could have treated the restoration application as one invoking the court's inherent jurisdiction under Section 151 CPC.

“The court should have shown greater restraint while dealing with these issues. The refusal to invoke the inherent powers in the facts of the present case to render justice, leads to an irresistible conclusion that there is a failure of justice on the part of the trial court,” the Court observed while allowing the petition.

It, thus, restored the suit and granted 10 days to the petitioner/plaintiff to take appropriate steps for serving summons.

Case No: OP(C) No. 2146 of 2026

Case Title: Vironi Augustine v. Joseph

Citation: 2026 LiveLaw (Ker) 433

Counsel for the petitioner: Roy Chacko

Click to Read/Download Judgment