Allowed

E.a.Nandakumar v. Dhanesh P.T.

Kerala HC10 Apr 2008WP(C)/11513/2008

Case brief

AI extract

What is this about?

The High Court held that rejecting a civil plaint on limitation without issuing a notice constituted gross injustice. It invoked Article 227 jurisdiction to set aside the rejection order, direct receiving of the plaint and issue of notice, and restrain realization of deposited funds pending the suit appearance.

What did the court decide?

Set aside the order rejecting the plaint; direct the court to receive the plaint, issue notice, and consider limitation plea subsequently; restrain realization of Rs. 75,000.

E.a.Nandakumar Vs Dhanesh P.T. — Contract and Commercial Disputes | 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

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THURSDAY, THE 10TH APRIL 2008 / 21ST CHAITHRA 1930

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WP(C).No. 11513 of 2008(U)

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------------------------------------OS.512/2008 of PRL.M.C.,ERNAKULAM

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PETITIONER:

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-----------------

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E.A. NANDAKUMAR, AGED 57 YEARS, S/O. LATE SHRI N.K.ACHUTHAN NAIR, VELLUTHEDATH PARAMBU, MARADU P.O., ERNAKULAM DISTRICT.

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BY ADV. SRI.K.B.SURESH

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RESPONDENTS:

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-----------------------

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1. DHANESH P.T. @ JNANESWARAN, AGED 52 YEARS, S/O. PADMANABHA RAO, C/O. SEEMA, THEKKEDATH HOUSE, MARADU P.O., NOW RESIDING AT PADMALAYAM, J.D.LANE, AMARAVATHY, KOCHI-1.

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2. SEEMA DHANESH, AGED 42 YEARS, W/O. DHANESH, PADMALAYAM, AMARAVATHY, MATTANCHERRY, KOCHI-1.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.P(C) NO.11513/2008

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APPENDIX

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PETITIONERS EXHIBITS

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EXT.P1:- COPY OF THE RECEIPT NO.52, DT. 7.3.03 FOR PAYMENT OF REVENUE RECOVERY PROCEEDINGS BY THE SPL. TAHSILDAR (R.R.) K.S.R.E. LTD., FOR RS. 20.997/- TO THE PETITIONER.

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EXT.P2:- COPY OF THE CERTIFICATE ISSUED BY THE ST. POST MASTER, ERNAKULAM H.P.O. TO THE PETITIONER DT. 1.9.3.07.

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EXT.P3:- COPY OF THE PLAINT IN OS. NO.512/08 OF THE HONOURABLE MUNSIFF'S COURT, ERNAKULAM , DT. 2.4.08.

/ TRUE COPY/

P.S. TO JUDGE

tss

M.N.KRISHNAN, J

=====================

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W.P.(C) No.11513 OF 2008 =====================

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Dated this the 10th day of April 2008

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JUDGMENT

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This writ petition is preferred with a prayer to quash the order rejecting the plaint dated 2.4.2008 by a writ of certiorari. I am conscious of the fact that the rejection of a plaint under Order 7 Rule 11 is an appealable decree. But it is a well settled proposition that when manifest and gross injustice is done without application of mind the court can invoke its jurisdiction under Article 227 of the Constitution of India. At the time of numbering the plaint the court is only bound to look into the averments in the plaint and I am informed at the inception itself it was found as barred by limitation and rejected the plaint. The petitioner has made available before me the copy of the plaint. Paragraph 5 of the plaint very specifically states that the first defendant had agreed to pay an amount of Rs.63,275/- as the principal and interest on 12.10.2007. Therefore going by the averments in the plaint the cause of action arises only on 12.10.2007 and if it is so, or on an earlier date where a reference is referred to the closure certificate which is 19.3.2007 the court cannot at the threshold reject the plaint even without

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WP(C) 11513/2008 -:2:-

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issuing a notice to the other side. This amounts to gross injustice and the party need not be driven from pillar to post for his remedial measures.

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Therefore, I set aside the order passed by the court below rejecting the plaint and direct the court below to receive the plaint, issue notice and on appearance of the defendants, if there is any plea of limitation, let it be considered and disposed of. There will also be an order directing the Prl.Munsiff not to part with Rs.75,000/- for the time being which is realisable by auction of the property in E.P.No.48 of 2006 in O.S.No.683/2000 till the defendants in the suit appear and the court considers the matter.

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Writ petition is disposed of as above.

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M.N.KRISHNAN, JUDGE

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Cdp/-

E.a.Nandakumar v. Dhanesh P.T.

Case brief

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E.a.Nandakumar v. Dhanesh P.T.

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