Petitioner challenged the setting aside of an ex-parte decree in a suit for specific performance. The High Court upheld the lower court's discretion but increased the required security deposit and costs payable by the defendants.
Defendants directed to furnish security for ₹8,00,000 and costs of ₹50,000.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
THURSDAY, THE 11TH DAY OF OCTOBER 2012/19TH ASWINA 1934
CRP.No. 416 of 2012 ()
IA.NOS.2229/2011 & 2230/2011 IN OS.139/2003 of PRINCIPAL SUB COURT,KOLLAM
REVISION PETITIONER(S):
VELAPPAN
S/O.CHELLAPPAN NAIR, ARCHANA VEEDU KUREEPUZHA CHERRY, SAKTHIKULANGARA VILLGE, KOLLAM.
BY ADVS.SRI.R.S.KALKURA
SRI.M.S.KALESH
SMT.A.V.PRIYA
SRI.HARISH GOPINATH
RESPONDENT(S):
S/O.RAGHAVAN PILLAI, VAZHANGAL VEEDU KANNIMEL CHERRY, SAKTHIKULANGARA VILLAGE, KOLLAM NOW RESIDING AT MULLASSERIL VEEDU, MEENATHU CHERRY KAVANADU P.O, KOLLAM 691 003.
D/O.KAMALAKSHY AMMA, VAZHANGAL VEEDU KANNIMEL CHERRY, SAKTHIKULANGARA VILLAGE, KOLLAM NOW RESIDING AT MULLASSERIL VEEDU, MEENATHU CHERRY KAVANADU P.O, KOLLAM 691 003.
BY ADV. SRI.K.SHAJ (CAVEATOR)
ADV. SRI. SAJJU. S., CAVEATOR
THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
V. CHITAMBARESH, J
C.R.P. NO. .416 OF 2012
Dated this the 11th day of October, 2012
ORDER
I heard Mr. R.S. Kalkura, Advocate on behalf of the petitioner and Mr. K. Shaj, Advocate who had lodged a caveat on behalf of the respondents.
“The petitioner was indebted to various persons. As such his going into hiding to save his life and as a consequence could not prosecute this case cannot be said to be baseless. It is true that the petitioner could have contacted his advocate using the modern means of communication but merely
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CRP No. 416/2012
because he did not opt to do so the ground stated for his absence cannot be said to be false. By allowing an application to set aside an ex-parte decree, no prejudice would be caused to the plaintiff and the only difficulty to which the plaintiffs will be put is that he would have to contest the suit on merits.”
performance is unconscionable and relies on the following factors:
thereon has been agreed to be sold for a mere sum of ` 3,50,000/-.
(ii) The plaintiff was admittedly not put in possession in part performance of the contract even after parting with 3,00,000/out of total sale consideration of 3,50,000/-.
(iii) There is no consideration in the judgment decreeing the suit ex-parte as regards discretion under Section 20 of the
Specific Relief Act.
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contest the suit. The contention that the defendants had to flee the native place and remain incognito cannot altogether be brushed aside. The court below has thought it fit to set aside the ex-parte decree for specific performance to enable the defendants to contest the suit on merits. I am not inclined to interfere with the discretion exercised by the court below in this regard in view of the peculiar fact situation as above.
5,00,000/- as security in addition to the payment of costs of 25,000/- to the plaintiff. I alter the condition by directing the defendants to furnish security for a total sum of 8,00,000/- in addition to payment of costs of 50,000/- to the plaintiffs. This is in view of the lapse of time after the decree and the expenses incurred by the plaintiff to have the sale deed registered in execution of the ex-parte deree. The defendants shall furnish security and pay costs as above within a period one month from the date of receipt of a copy of this judgment. The suit shall also be disposed of4
CRP No. 416/2012
untrammeled by anything said in the order of the court below. The Civil Revision Petition is disposed of as above.
V. CHITAMBARESH JUDGE
ncd
2 issues framed by the court
Whether the High Court should interfere with the lower court's discretion in setting aside an ex-parte decree in a specific performance suit.
Whether the security amount directed to be furnished by the defendants in setting aside the ex-parte decree should be increased.
1 provisions across 1 enactments
VELAPPAN
AYYAPPAN PILLAI
RADHAMMA
V. CHITAMBARESH
As recorded by the court registry
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