Dismissed

Soman v. E.v.Bhaskara Kurup

Kerala HC6 Mar 2013CRP/102/2013

Case brief

AI extract

What is this about?

This Court dismissed a civil revision petition challenging an ex parte decree in a suit for leave and license/prohibitory injunction. holding that the trial court was not obliged to issue notice for evidence collection after the petitioner's counsel abandoned the case and the petitioner failed to intervene despite inspection.

What did the court decide?

Petitioners were not granted a stay or reopening of the suit; the impugned judgment was upheld.

Soman Vs E.v.Bhaskara Kurup — Property and Title | Kerala HC (2013)

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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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WEDNESDAY, THE 6TH DAY OF MARCH 2013/15TH PHALGUNA 1934

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CRP.No. 102 of 2013 () ---------------------CMA.51/2010 of ADDL.DISTRICT COURT,ALAPPUZHA. OS.754/1999 of ADDL.MUNSIFF COURT, ALAPPUZHA

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PETITIONERS/APPELLANTS/DEFENDANTS:

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SOMAN AGED 64 YEARS

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VELLIYIL HOUSE, MARARIKULAM NORTH MURI

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MARARIKULAM VILLAGE, CHERTHALA.

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BHANUMATHI AGED 59 YEARS W/O.SOMAN, VELLIYIL HOUSE, MARARIKULAM NORTH MURI

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MARARIKULAM VILLAGE, CHERTHALA.

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BY ADV. SMT.C.G.BINDU

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RESPONDENT/RESPONDENT/PLAINTIFF:

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E.V.BHASKARA KURUP S/O.MADHAVA KURUP, SANTHI BHAVANA MARAIKULAN NORTH VILLAGE.

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R1 BY ADV. SRI.T.JAYAKRISHNAN R1 BY ADV. SRI.R.KRISHNAKUMAR (CHERTHALA)

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THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06-03-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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THOMAS P.JOSEPH, J. =========================

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C.R.P.No.102 of 2013

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============================ Dated this the 06^th day of March, 2013

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O R D E R

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Petitioners are defendants in O.S.No.754 of 1999 of Additional Munsiff's Court, Alappuzha aggrieved by the dismissal of C.M.A.No.51 of 2010 of the Additional District Court, Alappuzha.

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Respondent filed O.S.No.754 of 1999 in the Additional Munsiff's Court, Alappuzha for a decree for prohibitory injunction against petitioners trespassing into the suit property, described as 8 cents, effecting constructions or committing waste therein. Petitioners resisted the suit on various grounds such as that they have 13.36Ares of garden land comprised in survey No.46/16-1-5 of Mararikulam North Village as per document No.1374 of 1972 and that the said property is well bounded. They also contended that they have no intention to trespass into the property claimed by the respondent.

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On 14.03.2006 counsel for petitioners reported no instruction and thereon petitioners were set ex parte. That was followed by various proceedings taken by the respondent in the trial court. Trial court passed ex parte judgment and decree on 19.02.2009. Petitioners filed I.A.Nos.1081 and 1082 of 2009 to

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C.R.P.No.102 of 2013

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condone the delay of 18 days and set aside ex parte decree. Those applications were dismissed on 30.10.2010. That was confirmed by the learned Additional District Judge in C.M.A.No.51 of 2010.

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Learned counsel contend that after the counsel reported no instruction on 14.03.2006, trial court ought to have issued summons to the petitioners. It is further contended that after 14.03.2006, trial court has taken various proceedings for collecting evidence but the ex parte judgment and decree were pronounced only on 19.02.2009. According to the learned counsel, trial court ought to have disposed of the suit under Order IX, Rule 6 of the Code of Civil Procedure.

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Learned counsel for respondent has contended that records would show that even much prior to the petitioners filing I.A.Nos.1081 and 1082 of 2009, they were aware of pendancy of the case and the proceeding thereon. Still, they did not co-operate with the trial of the case nor requested trial court to set aside the ex parte order against them. It is also submitted that after 14.03.2006 what the trial court has done was only collecting evidence on the request of respondent.

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True that the Supreme Court in Malkiat Singh and Anr. Vs. Joginder Singh and Ors. ((1998)2 SCC 206) set aside

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C.R.P.No.102 of 2013

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the ex parte decree which followed the counsel reporting no instruction (on the facts of that cases and this Court in Jayapakshmi Vs. Avara (2003(2) KLT 901) relied on that decision. But the latter decision was explained by the Division Bench of this Court in Deepak Vs. George Philip (2006(4) KLT 369). It is not as if whenever a counsel reports no instruction the Court obliged in all cases to give notice or summons to the party or that for the said reason alone, the ex parte decree is to be set aside. That depends on the facts and circumstances of each case.

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In this case, on the counsel reporting no instruction petitioners were set ex parte on 14.03.2006. It is relevant to note that as pointed out by learned counsel for respondent, I.A.Nos.1081 and 1082 of 2009 and even the C.M appeal were filed through the same counsel who had appeared for petitioners in the suit and who had reported no instruction on 14.03.2006.

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I must also notice that as the Advocate Commissioner who inspected the property on 12.10.2008 has reported, second petitioner/second defendant was present at the spot at the time of inspection. Therefore, atleast second petitioner was aware of on going proceeding in Court after 14.03.2006. Normally, petitioners were expected to enquire about the stage of the case. Atleast after

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C.R.P.No.102 of 2013

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the Advocate Commissioner inspected the property they should have done that. That did not happen. Instead, they came with applications to set aside the ex parte decree and condone delay only in the year, 2009.

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It is difficult to accept the argument that for every proceeding after 14.03.2006, petitioners should have been given intimation. For, an ex parte defendant is not entitled to get notice of further proceeding in the suit except when there is a substantial change to the reliefs prayed for or other similar circumstances occur. What happened after 14.03.2006 was only collecting evidence on behalf of respondent as requested by him rather than straight away granting a decree. Notice of the said proceeding therefore was not required to be given to the petitioners.

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Nor am I impressed by the contention that the moment petitioners were set ex parte, trial court ought to have decided the case in favour of respondent. It was within the power of the trial court to collect evidence on behalf of respondent, notwithstanding absence of petitioners and decide the suit.

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I must also notice that relief granted by the trial court is only as regards the suit property - 8 cents. Petitioners are not disputing that respondent owns and possesses 8 cents.

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C.R.P.No.102 of 2013

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Having regard to the above circumstances, I am not inclined to think that the suit of the year, 1999 should be reopened.

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In that view of the matter, no interference is required

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with the judgment of the learned Additional District Judge.

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Civil revision is dismissed.

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THOMAS P.JOSEPH, JUDGE

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Sbna

Soman v. E.v.Bhaskara Kurup

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Soman v. E.v.Bhaskara Kurup

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