Kerala HC Sets Aside Dismissal of Money Recovery Suit, Raps Trial Court for Commenting on Counsel's Competence

The Kerala High Court restored a money recovery suit dismissed for want of summons steps, censuring the trial court's remarks on the drafting counsel's legal acumen as wholly unwarranted.

The High Court of Kerala at Ernakulam, through Justice Easwaran S. sitting singly, allowed a petition under Article 227 of the Constitution of India on 30 July 2026, restoring O.S. No. 570 of 2024 to the file of the Additional Munsiff Court, Cherthala. The suit, filed by Vironi Augustine for recovery of advance money, had been dismissed on 21 March 2025 solely because the plaintiff had not taken steps to serve summons after they were returned unserved. A subsequent restoration petition was also dismissed on 19 February 2026. The High Court found both orders to be gravely erroneous and directed the trial court's file to be restored, granting the petitioner ten days from the date of production of a copy of the judgment to take steps for service of summons.

The Suit and Its Dismissal at the Munsiff Court

Vironi Augustine, aged 66 years, of Aroor, Alappuzha District, filed O.S. No. 570 of 2024 before the Additional Munsiff Court, Cherthala, on 24 September 2024, seeking recovery of advance money from the defendant Joseph, aged 62 years, of Ezhupunna South, Alappuzha District. The suit was first posted to 26 October 2024, which fell on a holiday, and was consequently posted to 18 January 2025. On that date, fresh summons were ordered.

The case was next listed on 21 March 2025 for the return of summons. On that date, the Additional Munsiff dismissed the suit, finding that the plaintiff had failed to take fresh steps for service. The trial court's premise was that, despite repeated directions, the plaintiff had not acted, and that where summons are returned unserved, the plaintiff is required to apply within seven days for issuance of fresh summons.

The plaintiff thereafter filed Restoration Petition No. 30 of 2025 on 24 March 2025, seeking restoration of the suit under Order IX Rule 9 of the Code of Civil Procedure. The restoration petition was dismissed by the Additional Munsiff by order dated 19 February 2026. The trial court held that the petitioner's remedy lay in filing a fresh suit and not in a restoration application.

Whether the Seven-Day Requirement for Fresh Summons Is Mandatory

Before examining the validity of the trial court's reasoning, Justice Easwaran S. addressed the threshold legal question: is the requirement to apply for fresh summons within seven days of their return unserved mandatory or merely directory?

The court referred to Sudha Chandrasekharan K. v. Sasikala and Others [2012 (3) KLT 941], in which the Kerala High Court had already held that this seven-day requirement is directory and not mandatory. Given this settled position, the trial court was required to adopt a pragmatic and justice-oriented approach. Dismissing the suit without first granting the plaintiff a reasonable opportunity to take fresh steps was, in the High Court's view, manifestly erroneous and resulted in a serious failure of justice.

The Restoration Petition and the Trial Court's Conduct

The petitioner's grievance in the restoration petition was specific: she had not been given an opportunity to take out fresh summons to the defendant. The High Court acknowledged that the affidavit supporting the restoration petition could have been better worded, but held that the attempt made by the plaintiff could not be faulted.

What drew particular criticism from Justice Easwaran S. was not simply the dismissal of the restoration application but the manner in which the trial court dealt with it. The Additional Munsiff went beyond the merits of the restoration plea and made observations touching upon the legal acumen of the counsel who had drafted the application — going so far as to comment on counsel's comprehension of the provisions of the Code of Civil Procedure.

The High Court was unequivocal: “The observations made in the impugned order touching upon the competence of the counsel who drafted the application are wholly unwarranted.” If the trial court was of the view that the legal position canvassed by counsel was untenable, it ought to have confined its findings to the applicable statutory provisions and judicial precedents. Remarking on the propriety of the plaintiff invoking Order IX Rule 9 of the Code was unnecessary, the more so because the restoration application could very well have been treated as one invoking the court's inherent jurisdiction under Section 151 of the Code of Civil Procedure.

Failure to Exercise Inherent Powers Under Section 151

Justice Easwaran S. observed that the trial court had an available course of action: treating the restoration application as one invoking inherent powers under Section 151 of the Code and using those powers to render justice. The refusal to take that course, on the facts before it, led the High Court to the conclusion that there had been a failure of justice on the part of the trial court. The court added that the Additional Munsiff ought to have shown greater restraint while dealing with the issues arising from the restoration petition.

Taken together, the dismissal of the suit on 21 March 2025 and the dismissal of the restoration petition on 19 February 2026 were found to constitute a grave jurisdictional error. The High Court held that both orders had resulted in a miscarriage of justice warranting interference in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India.

Order

Justice Easwaran S. allowed OP(C) No. 2146 of 2026 on the same day it came up for admission — 30 July 2026. The court set aside Exts. P5 and P7, being the judgment dated 21 March 2025 dismissing O.S. No. 570 of 2024 and the order dated 19 February 2026 dismissing Restoration Petition No. 30 of 2025 respectively. O.S. No. 570 of 2024 was directed to stand restored to the file of the Munsiff Court, Cherthala.

The petitioner was granted a period of ten days from the date of production of a copy of the judgment before the trial court to take appropriate steps, in accordance with law, for effecting service of summons upon the defendant. The petition was represented by Advocate Roy Chacko.