Allowed

Tomy Devasia v. Babu Antony

Kerala HC3 Nov 2009WP(C)/17777/2009

Case brief

AI extract

What is this about?

The High Court set aside a judgment decreeing a specific performance suit because it was passed without notice to the defendant and without disposing the matter on merits. The trial court was directed to restore the suit, provide an opportunity to file a written statement, and dispose of the matter within six months.

What did the court decide?

Judgment in O.S. No. 147/2008 and order declaring defendants ex parte set aside; respondent directed to permit defendant to file written statement within three weeks and dispose of suit on merits with

Tomy Devasia Vs Babu Antony — Specific Performance | Kerala HC (2009)

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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 S.S.SATHEESACHANDRAN

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TUESDAY, THE 3RD NOVEMBER 2009 / 12TH KARTHIKA 1931

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WP(C).No. 17777 of 2009(O)

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-----------------------------------OS.147/2008 of PRINCIPAL SUB COURT,ALAPPUZHA

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PETITIONER(S):

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

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TOMY DEVASIA, VALLAPPATTIL, PERUMTHURUTH MURI, THANNEERMUKKOM SOUTH VILLAGE, CHERTHALA.

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BY ADV. MR.J.OM PRAKASH

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RESPONDENT(S):

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

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1. BABU ANTONY, NADAKKELPARAMPIL, CHETHIKAD MURI, PATHIRAPPALLY, ALAPPUZHA.

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2. KUNJUMON DEVASIA, VALLAPPATTIL, PERUMTHURUTHU, MUHAMMA.P.O., CHERTHALA.

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R1 BY ADV. MR.K.V.SABU R2 BY ADV. MR.G.GOPAKUMAR (CHERTHALA)

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) N.17777/2009

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APPENDIX

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PETITIONER'S EXHIBITS

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P1:- COPY OF THE PLAINT IN OS. 147/2008 OF THE SUB COURT, ALAPPUZHA DTD. 3.3.08.

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P2:- COPY OF THE MEMO OF SRI.K.C.SUDHEER, ADVOCATE FOR THE PLAINTIFF IN OS. 17/08 OF THE SUB COURT, ALAPPUZHA DTD. 2.4.08.

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P3:- COPY OF THE IA. 1190/08 IN OS. 147/08 OF THE SUB COURT, ALAPPUZHA DTD. 11.4.08.

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P4:- COPY OF THE OBJECTION FILED BY SRI.K.C.SUDHEER ADVOCATE IN OS. 147/2008 DTD. 15.7.08.

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P5:- COPY OF THE ORDER IN IA. 1190/08 IN OS. 147/08 DTD. 3.9.08 OF THE SUB COURT, ALAPPUZHA.

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P6:- COPY OF THE IA. 2112/08 IN OS. 147/08 OF THE SUB COURT, ALAPPUZHA DTD. 22.9.08.

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P7:- COPY OF THE COUNTER AFFIDAVIT IN IA. 2112/08 DTD. 12.1.09 IN OS. 147/08 OF THE SUB COURT, ALAPPUZHA.

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P8:- COPY OF THE ORDER IN IA. 2112/08 IN OS. 147/08 DTD. 29.1.09 OF THE SUB COURT, ALAPPUZHA.

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P9:- COPY OF THE IA. 229/09 IN OS. 147/08 DT. 7.2.09 OF THE SUB COURT, ALAPPUZHA. P10:- COPY OF THE COUNTER AFFIDAVIT OF THE PETITIONER DTD. 13.3.09.

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P11:- COPY OF THE ORDER IA. 29/09 IN OS. 147/08 DTD. 7.4.09 OF THE SUB COURT, ALAPPUZHA.

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P12:- COPY OF THE JUDGMENT IN OS. 147/08 DTD. 8.4.09.

TRUE COPY

P.A. TO JUDGE

tss

S.S.SATHEESACHANDRAN, J.

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W.P.(C).No.17777 of 2009 - O

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Dated this the 3^rd day of November, 2009

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J U D G M E N T

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Writ petition is filed seeking the following relief:

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“To issue a writ of certiorari calling for the records relating to Ext.P5 & P11 and quash the same.”

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Petitioner is the second defendant in O.S.No.147 of

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2008 on the file of the Sub Court, Alappuzha. Suit is one for specific performance of an agreement of sale, and the first respondent is the plaintiff and second respondent, the first defendant. Petitioner/second defendant in fact is only the power of attorney holder of the first defendant. In the above suit after setting aside the defendants exparte, for the reason of nonfiling of the written statement within the time fixed by the court, the suit was initially dismissed after an affidavit was filed by the plaintiff in support of the suit claim. It is admitted at the stage when such affidavit was filed the balance court fee payable on the suit claim had not been remitted by the plaintiff. Still, it was not an order of rejection of the plaint, but, dismissal of that suit was the view taken by the court when an application was moved

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W.P.(C).No.17777 of 2009 - O

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subsequently by the plaintiff for reviewing the disposal of the suit treating it as a rejection of the plaint and remitting the balance

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court fee. Whatever that be, pursuant to dismissal of the review petition, the plaintiff moved an application for restoration of the suit under Order IX Rule 9 of the Code of Civil Procedure. Without notice to the defendants that application was allowed and, later, the court also passed Ext.P12 judgment decreeing the suit. Propriety and correctness of Ext.P12 judgment is challenged by the second defendant invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India.

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I heard the counsel on both sides.

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From the submissions made and also perusing Ext.P12 order and also other exhibits tendered in the petition including the order passed by the court below on the review petition moved by the plaintiff, I find the orders passed by the court from time to time after disposal of the suit, whether it be rejection of the plaint or dismissal, were not only irregular but, improper and not in tune with the provisions of law. Ext.P12 judgment passed by

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W.P.(C).No.17777 of 2009 - O

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the court after restoring the suit without notice to the defendants in any view of the matter cannot be sustained. At the time of hearing the learned counsel for the petitioner submitted that his only grievance is that he should be given an opportunity to have a decision on merits of the suit after acceptance of his written statement setting aside the exparte order passed against him. Learned counsel for the first respondent also submitted that in view of what had transpired earlier, and in the event of setting aside the judgment an opportunity be provided to the plaintiff to establish his suit claim. Considering the submissions made and taking into account the circumstances involved in the case, setting aside the judgment passed in the suit and also the order declaring the defendants exparte, I direct the court below to extend an opportunity to the defendant to file their written statement. Suit has to be disposed of on its merits giving opportunity to both sides to lead evidence in support of their respective case. It is reported that the entire balance court fee payable on the suit claim has already been remitted by the first respondent/plaintiff in the suit. The defendants if they have not

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W.P.(C).No.17777 of 2009 - O

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filed written statement so far shall file written statement within a period of three weeks from the date of receipt/production of a copy of this judgment, unless such period is extended by the court below for sufficient reason. Parties are directed to appear before the court below on 20.11.2009. Court below is directed to dispose of the suit, as expeditiously as possible, at any rate, within a period of six months from the date of receipt/production of a copy of this judgment.

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Writ petition is disposed of as above.

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S.S.SATHEESACHANDRAN, JUDGE.

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bkn/-

Tomy Devasia v. Babu Antony

Case brief

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Tomy Devasia v. Babu Antony

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