Dismissed

Kunjumon v. Sajeevan

Kerala HC5 Feb 2008CRP/516/2007

Case brief

AI extract

What is this about?

This High Court of Kerala disposed of a civil revision petition challenging an order allowing an appeal on payment of costs based on consent. The court declined to interfere, leaving a review application as the remedy. It also directed the lower court to stay proceedings on the main suit pending the disposition of an appeal against a counter claim.

What did the court decide?

Revision petition dismissed; trial court directed not to proceed with suit pending appeal against counter claim.

Kunjumon Vs Sajeevan — Civil Procedure and Limitation | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 5TH FEBRUARY 2008 / 16TH MAGHA 1929

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CRP.No. 516 of 2007() --------------------FAO.57/2003 of SUB COURT,KOTTARAKKARA OS.395/1999 of MUNSIFF COURT, PUNALUR

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REVN. PETITIONER: RESPONDENT/DEFENDANT

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KUNJUMON, S/O.LATE MATHAN KOCHUKUNJU, AGED 47, PANOM PADIKKAL HOUSE, YEROOR P.O., PATHANAPURAM TALUK, PIN- 691 312.

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BY ADV. SRI.S.SREEKUMAR

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RESPONDENT: 2ND APPELLANT/2ND PLAINTIFF

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SAJEEVAN, S/O.LATE MATHAN KOCHUKUNJU, PANAM PADIKKAL HOUSE, YEROOR P.O., PATHANAPURAM TALUK.

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BY ADV. SRI.B.KRISHNA MANI

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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ORDER ON IA 1305/07 IN C.R.P 516/07

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DISMISSED

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5.2.08 SD/- M.N.KRISHNAN, JUDGE

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/TRUE COPY/ PA TO JUDGE.

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M.N.KRISHNAN, J.

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C.R.P. NO. 516 OF 2007

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Dated this the 5^th day of February, 2008

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ORDER

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This revision petition is preferred with a prayer to set aside the order in FAO 57/03 on the file of the Sub court, Kottarakara and to dismiss the appeal.

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A perusal of the order under challenge would reveal that the Subordinate Judge, Kottarakara has disposed of the appeal on payment of a cost of Rs.2,000/-. The payment was made on 28.3.07 and the appeal was allowed. In para 4 of the judgment, the appellate court held that “at the time of arguments the counsel for the respondent submitted that the respondent has no objection in allowing the appeal on cost. Hence I feel it just and proper to allow the appeal on cost.”

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So it is on the basis of this consent, which is subsequently proved by the receipt of the payment of cost, the suit has been directed to be restored to file. Now, it is the settled position that when an order is passed on consent, the ordinary remedy for the party to challenge it is to approach the court, which passed the order, stating that there was no consent and appraise the situation. It is not proper for the revisional court to interfere in such matters.

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C.R.P. No. 516/07

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Therefore I decline to interfere with the order of the learned Sub Judge, but leave it to the revision petitioner to move an application for review, if he chooses to do so. The defendant in the suit filed a counter claim which has been allowed by the court and thereby the claim of the defendant is allowed by the court. Unless that order in the counter claim is varied or reversed there may be the difficulty for proceeding with the suit for the reason that principles of res judicata may apply. I am informed by the learned counsel for the plaintiff in that suit that an appeal has been preferred against the counter claim.

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Therefore, If the case is restored to file, I direct the learned Munsiff, where the matter will be pending, to direct the parties to submit about the stage of the appeal against the counter claim. If there is an appeal, till the disposal of the appeal against the counter claim, I direct the trial court not to proceed with the suit.

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The civil revision petition is disposed of accordingly.

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M.N.KRISHNAN, JUDGE

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vps

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C.R.P. No. 516/07 3

Kunjumon v. Sajeevan

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Kunjumon v. Sajeevan

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