Dismissed

Annie Mendez v. Don Bosco Mendez

Kerala HC3 Jun 2011CRP/679/2010

Case brief

AI extract

What is this about?

The High Court of Kerala disposed of civil revision petitions challenging an order that set aside an ex parte decree and condoned a delay of 583 days. Upholding the lower court's decision that the defendants were close relatives who reasonably believed the suit would be withdrawn per an agreement, the Court found no ground to interfere and dismissed the revisions.

What did the court decide?

The Civil Revision Petitions were dismissed, leaving the order setting aside the ex parte decree intact.

Annie Mendez Vs Don Bosco Mendez — Execution and Attachment | Kerala HC (2011)

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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 K.T.SANKARAN

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FRIDAY, THE 3RD JUNE 2011/13TH JYAISHTA 1933

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CRP.No. 679 of 2010

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AGAINST THE ORDER DATED 28.9.2010 IN I.A.NO.3744 OF 2009 IN OS.NO.53/2005 OF II ADDL.MUNSIFF'S COURT, ERNAKULAM

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REVN. PETITIONER: RESPONDENT: PLAINTIFF:

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ANNIE MENDEZ, W/O.LATE ANACLOSE MENDEZ, NOW RESIDING AT VALIYAPARAMBIL HOUSE, PALLIKAVU TEMPLE ROAD, VADUTHALA, ERNAKULAM.

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BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SMT.SUBHA ABRAHAM

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RESPONDENTS: PETITIONERS-DEFENDANTS 1-3:

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DON BOSCO MENDES, VALIYAPARAMBIL HOUSE, PALLIKAVU TEMPLE ROAD, VADUTHALA, CHERANALOOR VILLAGE, KANAYANNUR TALUK. PIN 682 034.

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TREESA MENDES, W/O.DON BOSCO MENDEZ. VALIYAPARAMBIL HOUSE, PALLIKAVU TEMPLE ROAD, VADUTHALA, CHERANALOOR VILLAGE, KANAYANNUR TALUK, PIN 682 034.

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CRISTOPHER CORNEYA, AMBATTU HOUSE, PALLIKAVU TEMPLE ROAD, VADUTHALA, CHERANALOOR VILLAGE, KANAYANNUR TALUK, PIN 682 034. NOW RESIDING AT DOOR NO.3, GANAPATHY COLONY, ANNA NAGAR, 2ND STREET, COIMBATORE-7.

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R1 AND R2 BY ADV. SRI.C.P.SAJI

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/06/2011, ALONG WITH C.R.P.NO.680 OF 2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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K.T.SANKARAN, J.

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C.R.P. NOS.679 AND 680 OF 2010

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Dated this the 3^rd day of June, 2011

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O R D E R

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The petitioner is the plaintiff in O.S.No.536 of 2005 on the file of the Court of the II Additional Munsiff of Ernakulam. During the pendency of the suit, the parties to the suit, who are close relatives, entered into an agreement to settle the disputes and differences. Certain conditions were stipulated in the agreement. It was also agreed that the plaintiff would withdraw the suit. The plaintiff did not withdraw the suit. But this fact was not intimated to the defendants. They did not appear before the Court. An exparte decree was passed.

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The defendants filed an application under Order IX Rule 13 of the Code of Civil Procedure to set aside the exparte decree. There was delay of 583 days in filing that application. An application for condonation of delay was also filed. The court below, by the order dated 28.9.2010, allowed the application for condonation of delay on condition of payment of `500/- as costs and also allowed the application to set aside the exparte decree on payment of costs

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C.R.P. NOS.679 & 680 OF 2010

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:: 2 ::

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of `500/-. These orders are under challenge in the two Civil Revision

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Petitions filed by the plaintiff.

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The court below held that the plaintiff does not dispute the agreement and the existence of the condition in the agreement that the plaintiff should withdraw the suit. As regards the terms of the agreement made, there is no dispute between the parties. According to the plaintiff, the defendants did not fulfill one of the conditions in the agreement and that was the reason why the plaintiff proceeded with the suit. It is not disputed that no intimation was given to the defendants of the intention of the plaintiff to continue to prosecute the suit on the ground that the defendants committed breach of the terms of the agreement.

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The learned counsel for the respondents submitted that they were ready and willing to comply with the conditions, but, because of the nonco-operation of the plaintiff, the conditions could not be fulfilled. It is also pointed out that the defendants in O.S.No.536 of 2005 have filed another suit for identifying the pathway, in respect of the user of which the parties had entered into an agreement.

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C.R.P. NOS.679 & 680 OF 2010

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:: 3 ::

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The court below exercised the jurisdiction in favour of the defendants and set aside the exparte decree, after condoning the delay. The discretion exercised by the court below is just, reasonable and proper. By allowing the applications, the parties would be given an opportunity to have a fair trial which would result in a proper disposal of the suit on the merits. The court below thought that it would not be proper to deny an opportunity to the defendants to contest the case on the merits, in the peculiar facts and circumstances of the case. The parties are close relatives. The defendants cannot be blamed for not attending the court. They cannot be blamed for having believed the plaintiff that she would withdraw the suit in terms of the agreement. The orders passed by the court below are legal, just and reasonable.

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For the aforesaid reasons, I do not find any ground to interfere with the orders passed by the court below, by exercising jurisdiction under Section 115 of the Code of Civil Procedure. Accordingly, the Civil Revision Petitions are dismissed.

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ahz/

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(K.T.SANKARAN) Judge

Annie Mendez v. Don Bosco Mendez

Case brief

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Annie Mendez v. Don Bosco Mendez

Case brief

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