Disposed

P.Bhaskaran v. St. Mary'S Cathedral Bascilica, Ekm.

Kerala HC23 Jun 2011OP(C)/1890/2011

Case brief

AI extract

What is this about?

The High Court disposed of the fifth original petition filed by the petitioner, who sought directions to expedite disposal of his civil appeal and execution applications. The Court held that since delivery of possession had been effected, most reliefs were not maintainable, granting only a direction to the District Court to dispose of restoration applications expeditiously.

What did the court decide?

Direction to the District Court to dispose of I.A.Nos.2100 and 2101 of 2011 regarding restoration of appeal as expeditiously as possible.

P.Bhaskaran Vs St. Mary'S Cathedral Bascilica… — Civil Procedure and Limitation | 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 THURSDAY, THE 23RD JUNE 2011 / 2ND ASHADHA 1933

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OP(C).No. 1890 of 2011(O)

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AS.274/2010 OF PRINCIPAL DISTRICT COURT, ERNAKULAM OS.213/2003 OF PRINCIPAL SUB COURT, ERNAKULAM

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PETITIONER

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P.BHASKARAN, AGED 88 YEARS, BUILDING NO.38/437, SIDE HOTEL,PROVIDENCE ROAD, FROM KALEECKAL HOUSE, PALLICKAL.P.O., KAYAMKULAM, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER K.B.MOHANAN PILLAI, KARUKAPPALLIL HOUSE, ELAMAKKARA, ERNAKULAM. BY ADV. SMT.NAINA RAJI NAIR SRI.M.J.JOHNSON SMT.JALAJA SREENIVASAN SMT.RINTA GEORGE

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RESPONDENT:

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ST. MARY'S CATHEDRAL BASCILICA, ERNAKULAM, KOCHI-31, REPRESENTED BY ITS VICAR REV.FR.DR. JOSE CHIRAMEL, S/O. FRANCISE, RESIDING AT PRESBITORY OF ST.MARY'S BASCILICA CHURCH, ERNAKULAM.

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ADV. SRI.JIMMY JOHN VELLANIKARAN

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXT.P1	PHOTOCOPY OF E.P.NO.498 OF 2009 IN O.S.NO.213 OF 2003 OF THE PRINCIPAL SUB COURT, ERNAKULAM, DATED 15.10.2009.
EXT.P2	PHOTOCOPY OF THE JUDGMENT IN W.P.(C) NO.20282 OF 2010 DATED 3.8.2010.
EXT.P3	PHOTOCOPY OF A.S.NO.274 OF 2010 OF THE PRINCIPAL DISTRICT COURT, ERNAKULAM DATED 11.10.2010.
EXT.P4	PHOTOCOPY OF THE JUDGMENT IN W.P.(C) NO.26785 OF 2010, DATED 12.10.2010..
EXT.P5	PHOTOCOPY OF ADVANCE PETITION AS I.A.NO.5635 OF 2010 IN A.S.NO.274 OF 2010 FILED BEFORE PRINCIPAL DISTRICT COURT, ERNAKULAM, DATED 30.10.2010.
EXT.P6	PHOTOCOPY OF I.A.NO.5636 OF 2010 IN A.S.NO.274 OF 2010 IN PRINCIPAL DISTRICT COURT, ERNAKULAM DATED 29.10.2010.
EXT.P7	PHOTOCOPY OF E.A.NO.837 OF 2010 IN E.P.NO.498 OF 2009 ON THE FILES OF PRINCIPAL SUB COURT, ERNAKULAM DATED 7.8.2010.
EXT.P8	PHOTOCOPY OF E.A.NO.838 OF 2010 IN E.P.NO.498 OF 2009 ON THE FILES OF THE PRINCIPAL SUB COURT, ERNAKULAM DATED 7.8.2010.
EXT.P9	PHOTOCOPY OF OBJECTION E.A.NO.837 AND 838 OF 2010 IN E.P.NO.498 OF 2009 ON THE FILES OF PRINCIPAL SUB COURT, ERNAKULAM, DATED 7.1.2011.
EXT.P10	PHOTOCOPY OF REVIEW PETITION FILED BEFORE THE PRINCIPAL SUB COURT, ERNAKULAM, DATED 18.1.2011.
EXT.P11	PHOTOCOPY OF THE ADVANCE PETITION FILED BEFORE THE PRINCIPAL SUB COURT, ERNAKULAM, DATED 18.1.2011.
EXT.P12	PHOTOCOPY OF E.A. NO.129 OF 2011 FILED BEFORE THE PRINCIPAL SUB COURT, ERNAKULAM DATED 18.1.2011..
EXT.P13	PHOTOCOPY OF E.A.NO.128 OF 2011 IN E.P.NO.498 OF 2009 IN O.S.NO.213 OF 2003 FILED BEFORE THE PRINCIPAL SUB COURT, ERNAKULAM, DATED 18.1.2011..
EXT.P14	PHOTOCOPY OF THE JUDGMENT IN O.P.(C) NO.364 OF 2011 DATED 24.3.2011.
EXT.P15	PHOTOCOPY OF THE VAKALATH RELINQUISHMENT LETTER OF ADV.R.KRISHNA RAJ, DATED 7.4.2011.
EXT.P16	PHOTOCOPY OF THE MEDICAL CERTIFICATE ISSUED BY LOURDE'S HOSPITAL DATED 11.4.2011.

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EXT.P17 EXT.P18	PHOTOCOPY OF I.A.NO.2100 OF 2011 IN A.S.NO.274 OF 2010 OF THE PRINCIPAL DISTRICT COURT, ERNAKULAM, DATED 12.4.2011. PHOTOCOPY OF I.A.NO.2101 OF 2011 IN A.S.NO.274 OF 2010 OF THE PRINCIPAL DISTRICT COURT, ERNAKULAM, DATED 12.4.2011.
EXT.P19	PHOTOCOPY OF THE MEDICAL CERTIFICATE ISSUED BY THRIKKAKKARA GRAMA PANCHAYAT CO-OPERATIVE HOSPITAL, DATED 19.4.2011.
EXT.P20	PHOTOCOPY OF E.A.NO.660 OF 2011 IN E.P.NO.498 OF 2009 IN O.S.NO.213 OF 2003 FILED BEFORE THE PRINCIPAL SUB COURT, ERNAKULAM, DATED 23.5.2011.

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RESPONDENTS' EXHIBITS : NIL

//TRUE COPY//

AHZ/

K.T.SANKARAN, J.

-----------------------------------------------------O.P.(C). NO. 1890 OF 2011 O

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-----------------------------------------------------Dated this the 23^rd day of June, 2011

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JUDGMENT

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The petitioner is the defendant in O.S.No.213 of 2003 on the file of the Principal Sub Court, Ernakulam. The suit was for eviction and for realization of arrears of rent. The suit was decreed. Later, on finding that there are mistakes in the decree, it was corrected. The petitioner filed A.S.No.274 of 2010 before the District Court, Ernakulam, challenging the judgment and decree in O.S.No.213 of 2003. There was delay of 2075 days in filing the appeal. The appeal and the application for condonation of delay were dismissed for default on 29.1.2011. The petitioner filed I.A.Nos.2100 and 2101 of 2011 to restore the appeal and to condone the delay in filing the application for restoration. Those applications are pending.

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2. The reliefs prayed for in the Original Petition are the

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following:

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O.P.(C) NO.1890 OF 2011

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:: 2 ::

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“(i) issue such orders and directions to the Principal District Court, Ernakulam to consider and pass orders on merits in A.S.No.274 of 2010 (Exhibit P3) and in all other Interlocutory Applications filed in the said appeal within a period of 3 months.

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(ii) issue such orders and directions to the Principal Sub Court, Ernakulam to consider and pass orders on merits in E.A.No.129 of 2011, Exhibits P12 application and Exhibit P20 and in all other Interlocutory Applications if any filed by the judgment debtor in E.P.No.498 of 2009 in O.S.No.213 of 2003 on merits within a period of 2 months.

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(iii) issue such orders and directions to the Principal Sub Court, Ernakulam not to further proceed with the proceedings in E.P.No.498 of 2009 in O.S.No.213 of 2003 and in all other Execution Applications including Exhibits P7, P8 in the said E.P., Exhibit P1, till the disposal of Exhibit P3, Appeal by the Hon'ble Principal District Court, Ernakulam.

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(iv) issue such orders or direction to the respondent not to demolish or commit any act

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O.P.(C) NO.1890 OF 2011

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:: 3 ::

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of waste or damages in the petition schedule shop room in O.S.No.213 of 2003 on the files of Principal Sub Court, Ernakulam or not to lease out the same to other parties and not to induct strangers into the said building before the culmination of the legal proceedings initiated by the petitioner in Exhibit P3, appeal and the above said Original Petition.

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(v) issue such other relief as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.”

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Learned counsel appearing for the respondent submitted

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that this is the fifth Original Petition filed by the petitioner. It is submitted that all efforts were made by the petitioner to protract the proceedings and to delay the execution of the decree. Even a claim petition was filed by the son of the petitioner and the orders passed by the court were not obeyed, either by the petitioner or his son, and the matter was protracted. It is also submitted that delivery was effected on 7.7.2010.

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In view of the fact that delivery was effected, most of the reliefs prayed for in the Original Petition are not maintainable. The

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O.P.(C) NO.1890 OF 2011

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:: 4 ::

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only relief that can be granted to the petitioner is to direct the District Court to dispose of I.A.Nos.2100 and 2101 of 2011 filed by the petitioner for restoration of the appeal and for condonation of the delay in filing the application for restoration. Accordingly, there will be a direction to the District Court, Ernakulam to dispose of I.A.Nos.2100 and 2101 of 2011 as expeditiously as possible.

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The Original Petition is disposed of as above.

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ahz/

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(K.T.SANKARAN) Judge

P.Bhaskaran v. St. Mary'S Cathedral Bascilica, Ekm.

Case brief

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P.Bhaskaran v. St. Mary'S Cathedral Bascilica, Ekm.

Case brief

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