Courts Should Make Every Endeavour To Dispose A Case On Merits Rather Than On Default: Kerala High Court

The Kerala High Court last week ruled that courts should attempt to dispose of matters on merit rather than on default and avoid utilising a hypertechnical approach when presented with a case. 

Justice C.S Dias held so after observing that a trial court had overlooked the timely submission of a written statement in a money suit merely because it contained certain formal defects. 

"I find that the course adopted by the Court below to be hyper-technical and unwarranted especially when the petitioners had filed the written statement within the prescribed time period permitted by the Court below. The Court below ought to have granted the petitioners an opportunity to cure defect in the written statement, instead of taking the drastic step of rejecting the application. It is trite, Courts should make every endevour to dispose of a case on merits rather than on default."

The respondent herein had filed a suit before an Additional Subordinate Judge seeking a decree for realisation of money from the petitioners herein. Since the petitioners were set ex-parte, they filed an application to set aside the ex-parte order. The order was set aside on the condition that the petitioners file their written statement on or before 17.12.2018.

They filed the written statement on the said date, but there was a formal defect in the same. The Court below dismissed the application holding that no written statement was filed and thereby confirmed the ex-parte order. Challenging this decision, the petitioners approached the High Court. 

Advocate Biju Varghese Abraham appeared for the petitioners and Advocate Zakeer Hussain for the respondent.

The Court noted that the petitioners had filed their written statement on time, yet the lower court rejected the application holding that no written statement was filed. 

Upon perusing the documents available and the pleadings of the parties, the Judge opined that the lower court should have granted the petitioners an opportunity to cure the defect in the written statement, instead of taking rejecting the application directly. Calling this a hypertechnical and unwarranted step, the petition was allowed and the impugned order was set aside.  

The petitioners were permitted to cure the defects in the written statement within two weeks and present the written statement before the court below.

Case Title: Zerita Ashlen Rocha & Anr v. Ann Mary Varghese

Citation: 2022 LiveLaw (Ker) 306

Click Here To Read/Download The Order