P.B.Suresh Kumar, J
1. This review petition is preferred seeking orders reviewing the judgment dated 22.12.2023 in W.A.No.526 of 2023. The review petitioners were the appellants in the writ appeal.
2. The writ appeal was preferred challenging the judgment dated 29.11.2022 in W.P.(C) No.18473 of 2019. The writ petition was instituted by the first respondent and the petitioners were respondents 1 and 2 in the writ petition. The first respondent was the Secretary of the first petitioner, which is a co-operative society. The writ petition was one instituted challenging Exts.P1 and P5 orders issued by the President of the first petitioner, placing the first respondent under suspension and also removing the first respondent from the service of the society. Exts.P1 and P5 orders were impugned in the writ petition. The writ petition was allowed and the impugned orders were set aside, and it was aggrieved by the decision in the writ petition that the writ appeal was filed.
3. On 7.8.2023, when the writ appeal was taken up, it was noticed that the petitioners have not produced in the writ appeal, the documents produced by them along with their counter affidavit in the writ petition as Exts.R1(a) to R1(e). This court, in the circumstances, directed that the petitioners shall ensure that Ext.R1(a) to R1(e) are produced in the proceedings with appropriate application. It is seen that when the matter was taken up thereafter on 12.12.2023, this court directed the matter to be listed on 15.12.2023 and directed further that if the documents as directed in the order dated 7.8.2023 are not on record, the writ appeal will stand dismissed. The said order reads thus :
“Post on 15.12.2023.
If the documents as directed in the order dated 7.8.2023 are not on record, the writ appeal shall stand dismissed.”
The matter was though listed on 15.12.2023, it was adjourned to 22.12.2023. On 22.12.2023, the court dismissed the writ appeal for default, in the light of the order passed by the court on 12.12.2023 on the premise that the documents directed to be produced were not produced on or before 15.12.2023.
4. It is seen that the petitioners produced the documents directed to be produced, on 14.12.2023 itself along with I.A.No.1 of 2023 and the said interlocutory application was numbered on 15.12.2023. The case of the petitioners is that their counsel could not be present in court on 22.12.2023 and as such, it could not be brought to the notice of the court that the direction contained in the order dated 12.12.2023 has already been complied with. According to the petitioners, it is in the said circumstances, the appeal was dismissed for default on the assumption that the order dated 12.12.2023 has not been complied with. According to the petitioners, it is an error apparent on the face of the record inasmuch as the petitioners have complied with the order dated 12.12.2023.
5. The learned counsel for the first respondent opposed the review petition. The contention raised by the learned counsel is that the order dated 12.12.2023 is that the writ appeal will stand dismissed if the documents as directed in the order dated 7.8.2023 are not on record on 15.12.2023. It was argued by the learned counsel that even though the petitioners claim to have produced the documents directed to be produced on 14.12.2023 itself, the same were not on record either on 15.12.2023 or on 22.12.2023. As such, according to him, it cannot be said that there was any error at all in the matter of passing the order dated 22.12.2023.
6. We have examined the materials on record. The fact that the petitioners have produced the documents along with I.A.No.1 of 2023 before this court on 14.12.2023 and the said interlocutory application was numbered on 15.12.2023 is not disputed. If that be so, according to us, it cannot be said that the documents directed to be produced were not part of the records on 15.12.2023. It appears that it is a case where the documents produced by the petitioners in the registry on 14.12.2023 were not incorporated by the registry in the concerned file. According to us, the petitioners cannot be found fault with for the same. If the said view is not taken, the petitioners would suffer a technical defeat in the case. Such course of action is permissible only in extreme cases involving lack of diligence on the part of the parties in prosecuting the matters. We do not think that the case on hand is a case which falls under that category. We, therefore, allow the review petition and recall the judgment in the writ appeal dated 22.12.2023.
List the writ appeal as per roster.
