Dismissed

Thomas v. Jose Jacob

Kerala HC24 May 2012RSA/628/2012

Case brief

AI extract

What is this about?

The High Court dismissed a second appeal challenging an ex parte decree in an injunction suit. The court held that the trial court properly considered the appellants' written statement contentions during evidence evaluation and that the second appeal could not challenge grounds already adjudicated in a set-aside application.

What did the court decide?

Second appeal dismissed; pending interlocutory applications dismissed.

Thomas Vs Jose Jacob — 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 THOMAS P.JOSEPH

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THURSDAY, THE 24TH DAY OF MAY 2012/3RD JYAISHTA 1934

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RSA.NO. 628 OF 2012 ()

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AS.76/2011 DISTRICT COURT,KOTTAYAM OS.122/2009 OF MUNSIFF'S COURT, VAIKOM

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APPELLANT(S)/APPELLANT/APPELLANTS/DEFENDANT:

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1. THOMAS

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S/O.MATHAI, POTHALATHIL HOUSE, KALLARA VILLAGE KALLARA KARA, VAIKOM TALUK.

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2. JAMES

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S/O.MATHAI, POTHALATHIL HOUSE, KALLARA VILLAGE KALLARA KARA, VAIKOM TALUK.

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3. JOSE

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S/O.MATHAI, POTHALATHIL HOUSE, KALLARA VILLAGE KALLARA KARA, VAIKOM TALUK.

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BY ADV. SRI.A.K.HARIDAS

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RESPONDENT/RESPONDENT/PLAINTIFF:

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JOSE JACOB CHERUKATTUPARAMBIL, KALLARA VILLAGE VAIKOMTALUK - 686606.

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BY ADV. SRI.MATHEW JOHN (K)(CAVEATOR)

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24-05-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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THOMAS P.JOSEPH, J.

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==================================== R.S.A. No.628 of 2012

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==================================== Dated this the 24^th day of May, 2012

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J U D G M E N T

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Defendants in O.S. No.122 of 2009 of the court of learned Munsiff, Vaikkom aggrieved by the ex parte decree passed against them on 17.01.2011 challenged it in the court of learned District Judge, Kottyam in A.S. No. 76 of 2011, only to be dismissed.

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Respondent has filed a caveat and counsel appeared

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for him.

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Respondent sued the appellants for a decree for mandatory and prohibitory injunction. Appellants appeared and filed written statement raising appropriate contentions. When the case was taken up for trial there was no representation for the appellants and they remained absent. Thereon respondents filed affidavit. Based on that affidavit and documents marked in evidence, trial court granted a decree in favour of the respondent. In the meantime appellants filed an application to set aside the ex parte decree and that application was allowed on terms. Appellants challenged the ex parte decree on merit in A.S. No.76 of 2011. Simultaneously they challenged the ultimate dismissal of the application to set aside the ex parte decree in C.M.A. No.18

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R.S.A. No.628 of 2012

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-: 2 :-

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of 2011. Learned District Judge vide common judgment dated 25.10.2011 dismissed A.S. No.76 of 2011 which is in challenge of the ex parte decree but passed a conditional order in the C.M. Appeal. Obviously those conditions were not complied by the appellants. Dismissal of A.S. No.76 of 2011 is under challenge in this second appeal.

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Contention raised by learned counsel in this appeal is that trial court has proceeded as if appellants had not entered appearance in the suit. According to the learned counsel, appellants had filed written statement raising appropriate contentions and in the circumstances trial court was bound to refer to the contentions raised in the written statement while disposing of the suit even in the absence of appellants.

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Not doubt, appellants had filed written statement in answer to the plaint disputing various allegations in the pliant and contended that respondent is not entitled to the relief prayed for. I have gone through the judgment of trial court where it is stated that the proof affidavit (filed by the respondent) stands unassailed, version (of the respondent) stands admitted and thus admission and documentary evidence proved the case of respondent. I must also notice that apart from the proof affidavit,

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R.S.A. No.628 of 2012

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-: 3 :-

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respondent had marked Exts.A1 to A9(a) and C1 to C2(a). Thus going by the judgment of the trial court there was sufficient evidence to grant relief to the respondent. Though not expressed in so many words it is clear that trial court was conscious of the contentions raised by the appellants in their written statement as is disclosed by the expression “proof affidavit stand unassailed. Therefore version stands admitted. Thus the admission and documentary evidence would prove the case of plaintiff.” Obviously learned Munsiff had to say so because of the contentions appellants had raised in the written statement.

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When an ex parte decree is challenged in appeal, that can only relate to merit of the ex parte decree and not to any ground which the appellants may/could have urged in an application preferred under Order IX Rule 13 of the Code of Civil Procedure.

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Having heard learned counsel I do not find any substantial question of law involved in this appeal.

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I make it clear that this judgment will not stand in the way of appellants pursuing their remedy if any available to them in the light of the judgment in C.M.A. No.18 of 2011.

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R.S.A. No.628 of 2012

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-: 4 :-

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Second Appeal is dismissed with the above observation.

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All pending Interlocutory Applications will stand dismissed.

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THOMAS P. JOSEPH, JUDGE.

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vsv

Thomas v. Jose Jacob

Case brief

What is this about?

What did the court decide?

Thomas v. Jose Jacob

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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