Allowed

Alocious Fernandez v. J.Joosa Morais

Kerala HC11 Dec 2012OP(C)/131/2011

Case brief

AI extract

What is this about?

The High Court set aside orders dismissing applications to set aside a suit dismissed for default and an ex parte decree. It restored the suits for trial, imposing costs on petitioners for their latches.

What did the court decide?

Impugned orders set aside; O.S. No. 426/2008 restored and ex parte decree in O.S. No. 343/2008 set aside, subject to payment of costs; cases to be disposed of before summer recess 2013.

Alocious Fernandez Vs J.Joosa Morais — Civil Procedure and Limitation | Kerala HC (2012)

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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 V.CHITAMBARESH

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TUESDAY, THE 11TH DAY OF DECEMBER 2012/20TH AGRAHAYANA 1934

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OP(C).No. 131 of 2011 (O)

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CMA.21/2010 of SUB COURT,NEYYATTINKARA OS.426/2008 of PRINCIPAL MUNSIFF COURT.,NEYYATTINKARA

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PETITIONER(S)/PETITIONERS::

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1. ALOCIOUS FERNANDEZ CHARATHADY, PULLUVILA P.O., KARUMKULAM VILLAGE NEYYATTINKARA TALUK, THIRUVANANTHAPURAM.

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2. ANTONY FERNANDEZ, CHARATHADY PURAYIDOM PULLUVILA P.O., KARUMKULAM VILLAGE NEYYATTINKARA TALUK, THIRUVANANTHAPURAM.

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BY ADVS.SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.MANU V. SRI.P.GOVIND

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RESPONDENT(S):

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1. J.JOOSA MORAIS PULLUVILA, KARUMKULAM VILLAGE, NEYYATTINKARA TALUK THIRUVANANTHAPURAM.

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2. K.MARY CELINE, W/O.J.JOOSA MORAISE, CELINE NIVAS, PULLUVILA, KARUMKULAM VILLAGE NEYYATTINKARA TALUK, THIRUVANANTHAPURAM.

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3. SYMON JOSE, ARATTUKULAM HOUSE, BHAGAT SINGH ROAD, PETTAH, THIRUVANANTHAPURAM.

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4. JAMES GONSALVEZ, H/O.JANET GONSALVES, ARATTUKULAM HOUSE, BHAGAT SINGH ROAD, PETTAH THIRUVANANTHAPURAM.

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5. JANET GONSALVEZ, W/O.JAMES GONSALVEZ, ARATTUKULAM HOUSE, BHAGAT SINGH ROAD, PETTAH THIRUVANANTHAPURAM.

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ADDL. R6 TO R8 IMPLEADED

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6. JOSE VICTOR, S/O. J.JOOSA MORAIS , CELINE NIVAS PULLUVILA, KARUMKULAM VILLAGE, NEYYATTINKARA TALUK THIRUVANANTHAPURAM.

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OP(C).No. 131 of 2011 (O)

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----2-----

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7. SANTHOSH KUMAR, S/O. J.JOOSA MORAIS, CELINE NIVAS PULLUVILA, KARUMKULAM VILLAGE, NEYYATTINKARA TALUK THIRUVANANTHAPURAM.

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8. SINDHU JOSE, D/O. J.JOOSA MORAIS PULLUVILA, KARUMKULAM VILLAGE, NEYYATTINKARA TALUK THIRUVANANTHAPURAM.

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ADDL. R6 TO R8 IMPLEADED AS PER I. A NO.5186/2012 DATED 17-3-2012

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R,R1,R2,RADDL.5 & 6 BY ADV. SRI.VADAKARA V.V.N.MENON

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BY ADV. SRI.R.S.KALKURA

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 11-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 131 of 2011 (O)

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APPENDIX

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PETITIONERS EXHIBITS

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P1 COPY OF THE PLAINT IN O.S. NO.343/2008 ON THE FILES OF the COURT OF the PRINCPAL MUNSIFF, NEYYATTINKARA

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P2 COPY OF THE WRITTEN STATEMENT IN O.S. NO.343/2008 ON THE FILES OF the COURT OF THE PRINCIPAL MUNSIFF, NEYYATTINKARA

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P3 COPY OF THE PLAINT IN O.S. NO.426/2008 ON THE FILES OF THE COURT OF THE PRINCIPAL MUNSIFF NEYYATTINKARA

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P4 COPY OF the WRITTEN STATEMENT IN O.S. NO.426 OF 2008 ON THE FILES OF the FILES OF THE COURT OF THE PRINCIPAL MUNSIFF, NEYYATTINKARA

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P5 COPY OF the JUDGMENT DATED 7-8-2009 OF the COURT OF THE PRINCIPAL MUNSIFF, NEYYATTINKARA IN O.S. NO.343 OF 2008

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P6 COPY OF THE COMMISSION REPORT TOGETHER WITH THE PLAN FILED IN O.S NO. 3432 OF 2008 OF the COURT OF THE PRINCIPAL MUNSFF, NEEYATTINKARA , IN O.S. NO.343 OF 2008

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P7 COPY OF THE I.A. NO.4612 OF 2009 IN OS. NO.343 OF 2008 ON THE FILES OF THE COURT OF the PRINCIPAL MUSIFFF, NEYYATTINKARA

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P8 COPY OF THE OBJECTION DATED 7-6-2010 FILED BY THE RESPONDENTS 1 AND 2 TO EXHIBITS P7 PETITION

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P9 COPY OF THE OBJECTION DATED 7-6-2010 FILED BY THE RESPONDENTS 1 AND 2 TO EXHIBIT P9 PETITION

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P10 COPY OF THE OBJECTION DATED 7-6-2010 FILED BY THE RESPONDENTS 1 AND 2 TO EXHIBIT P9 PETITION

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P11 COPY OF THE E.P NO.402 OF 2009 IN O.S. NO.343 OF 2008 OF the COURT OF THE PRINCIPAL MUNSFF, NEEYATTINKARA

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P12 COPY OF THE COMMON ORDER PASSED BY THE COURT OF the PRINCIPAL MUNSIFF, NEYYATTINKARA, IN I.A. NO.4611 OF 2009 IN O.S. NO.426/2008 AND I.A. NO.4612 OF 2009 IN O.S. NO.343 OF 2008

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P13 COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WRIT PETITION (CIVIL) NO.28924/2010

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P14 COPY OF the COMMON JUDGMENT DATED 6-12-2010 IN C.M.A. NOS. 21/2010 AND 22 OF 2010 PASSED BY THE COURT OF the SUB JUDGE, NEYYATTINKARA

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OP(C).No. 131 of 2011 (O)

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RESPONDENTS EXHIBITS NIL TRUE COPY P.A TO JUDGE

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SMM

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V.CHITAMBARESH,J.

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= = = = = = = = = = =

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O.P.(C) No. 131 of 2011

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= = = = = = = = = = = == = = = = Dated this the 11^th day of December, 2012

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J U D G M E N T

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O.S No.426/2008 on the file of the Court of the Munsiff of Neyyattinkara was filed by the petitioners for declaration of title and possession and for putting up boundary and consequential injunction. O.S No.343/2008 on the file of the same Court was filed by the respondents for declaration of title and recovery of possession. Both the suits were listed for trial on 6-8-2009 on which date O.S No.426/2008 was dismissed for default and O.S No.343/2008 was decreed exparte the next day. Applications filed to set aside the order of dismissal for default in O.S No.426/2008 and to set aside the exparte decree in O.S No.343/2008 were dismissed and the common order passed has been affirmed in appeal. The petitioners assail these orders in proceedings under Article 227 of the Constitution of India.

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The specific case of the petitioners is that they were taken by surprise when O.S No.426/2008 and 343/2008 were called on for hearing on 6-8-2009. The petitioners contend that

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O.P.(C) No. 131 of 2011 2

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they were under the bonafide belief that the suits were posted to 16-8-2009 for trial as was noted by the clerk of their Counsel. The Counsel for the petitioners when served with a copy of the chief affidavit of the plaintiffs in O.S No.343/2008 was perplexed and reported no instructions thereupon. The applications for restoring the suit to file and to set aside the exparte decree were preferred on 7-9-2009 within the period prescribed and there is no delay whatsoever in the preferment.

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The mere fact that the Counsel for the petitioners was

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present in court when the suits were called on for hearing and was compelled to report no instructions under the circumstances aforementioned is not sufficient to dismiss the applications filed for rehearing. Every endeavour should be made to dispose of the suits on merit rather than allowing the suit to go for default and allowing another to obtain a decree exparte. Contentious issues have been raised in both the suits which involve adjudication of complex question of title and also putting up boundaries in addition to recovery of possession. I am therefore inclined to afford an opportunity to the petitioners to contest both the suits on merits subject of course to stringent conditions in view of some latches on their part.

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O.P.(C) No. 131 of 2011

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The impugned orders are set aside and O.S No.426/2008 is restored to the file of the Court of the Munsiff of Neyyattinkara. Similarly the exparte decree in O.S No.343/2008 on the file of the same court is set aside . This is subject to the condition that the petitioners pay a sum of Rs.10,000/- (Rupees ten thousand only) to Mr.Vadakara V.V.N Menon, Advocate who appeared on behalf of the respondent Nos. 1 , 2 ,5 and 6 and another sum of Rs.10,000/- (Rupees ten thousand only) to Mr.R.S Kalkura , Advocate who appeared on behalf of the additional seventh respondent in this original petition. The costs shall be paid within a period of three weeks from today failing which the impugned orders will remain in tact. The court below will dispose of both the suits before the closure of Courts for summer recess in the year 2013 in case they are resurrected to file on compliance with the condition aforesaid.

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The Original Petition (Civil) is disposed of.

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V.CHITAMBARESH. JUDGE

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smm

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O.P.(C) No. 131 of 2011 4

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O.P.(C) No. 131 of 2011 5

Alocious Fernandez v. J.Joosa Morais

Case brief

What is this about?

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Alocious Fernandez v. J.Joosa Morais

Case brief

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