The High Court dismissed a revision petition challenging an order allowing the respondent to set aside an ex parte decree. It held the revision lacked merit due to demonstrated laches and costs imposed, but directed expeditious disposal of the underlying suit.
Revision dismissed in limine; direction to expedite disposal of the underlying suit.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
THURSDAY, THE 29TH DAY OF SEPTEMBER 2016/7TH ASWINA, 1938
CRP.No. 389 of 2016
IA.NO.1203/2015 & IA.NO.1204/2015 OF OS.NO317/2014 OF MUNSIFF COURT, SOUTH PARAVOOR
PETITIONER(S)/PLAINTIFF :
SAJITHA KUMARI, D/O. SARASWATHI AMMA, AGED 42 YEARS, SREELEKSHMI, THETTIKUZHY, PARIPPALLY, KOLLAM DISTRICT.
BY ADVS.SRI.R.MOHANA BABU SRI.M.AJITH (KARICODE)
RESPONDENT(S)/DEFENDANT.: -------------------------
PRAJITH, S/O. CHELLAPPAN PILLAI, SANDHYA BHAVAN, THETTIKUZHY PARIPALLY, KOLLAM DISTRICT-691001.
THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29-09-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
PJ
K.RAMAKRISHNAN, J.
======================== C.R.P No.389 of 2016
========================== Dated this the 29th day of September, 2016
ORDER
The above revision has been filed by the petitioner challenging the order passed by the court below in I.A Nos.1203 of 2015 and 1204 of 2015 in O.S No.317 of 2014 of Munsiff Court, South Paravur. The case of the revision petitioner is that the petitioner as plaintiff filed O.S No.317 of 2014 before Munsiff Court, South Paravur against the defendant for mandatory injunction on the basis of an agreement dated 02.07.2014, since the the respondent did not vacate the premises as undertaken. So he filed the above suit for mandatory injunction to get vacant possession of the plaint schedule building. The suit was decreed ex parte on 30.05.2015 granting a decree for mandatory injunction permitting the petitioner to get vacant possession of the plaint schedule building through court. Petitioner filed E.P No.17 of 2014
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to execute the decree and at that time the respondent filed I.A No.1203 of 2015 to set aside the ex parte decree along with I.A no.1204 of 2015 to condone the delay. Those applications were dismissed for default and delivery was ordered and he filed I.A No.934 of 2016 to restore those applications. But that was also dismissed by the court below which was challenged by the respondent by filing O.P(C) No.1421 of 2016 before this Court and this Court by order dated 13.06.2016 allowed the petition and directed the Munsiff to consider I.A Nos.1203 of 2015 and 1204 of 2015 on merit on payment of cost of Rs.7,000/- to the respondent. It is thereafter, after hearing both sides court below allowed the applications on payment of Rs.5,000/- payable on or before 31.08.2016. This order is under challenge by filing the above revision by the petitioner who is the plaintiff before the court below.
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unsustainable in law and wanted to set aside the order and also submitted that if the court is not inclined to admit the revision, this revision can be disposed of with the direction to the court below to expedite disposal of the suit itself as it was once decreed ex parte.
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Since the respondent did not vacate the premises, revision petitioner filed E.P No.17 of 2015. When the respondent received notice of the execution proceedings, he filed I.A No.1203 of 2015 to set aside the ex parte decree along with I.A No.1204 of 2015 to condone the delay in filing the application on 22.07.2015. The application was earlier dismissed for default and the amin was deputed for taking delivery. The respondent filed an application for restoration of the same but that was also dismissed by the court below, which was challenged by the respondent by filing O.P.(C) No.1421 of 2016 before this Court and this Court allowed the petition and ordered restoration of the applications on condition of payment of cost of Rs.7,000/- which was later paid and thereafter court below considered the applications in detail and by the impugned order allowed the applications on payment of cost of Rs.5,000/- . The respondent himself was examined as PW1 and gave the reasons for his nonappearance. It is mentioned in the proof affidavit and also the petition that he went to Mumbai in search of an employment and even now he is in Mumbai and he could not contact the counsel and that was reason why he could
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not appear and file written statement and also conduct the case. It is also mentioned that in the cross examination it was brought out that after some time, he could not contact his counsel. He denied the suggestion that he had received notice in the execution proceedings on 20.05.2015 from the process server as well. It is stated that he came from Mumbai on 20.07.2015 and thereafter filed the application. It is settled law that the court must be liberal in considering the application under Order IX Rule 9 and Order IX Rule 13 and if there is substantial issue to be considered, then, the court should allow the parties to meet the case on merit. Even if there is any laches, that can be compensated by ordering cost. This court while restoring the application allowed payment of Rs.7,000/- as cost and court below also now ordered cost of Rs.5,000/- for allowing the application to set aside the ex parte decree after condoning the delay in filing the application. So considering the circumstances and also the reasons stated by the court below, it cannot be said that the court below had committed any illegality or impropriety in passing the order warranting interference invoking the
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revisional jurisdiction. So the revision lacks merit and the same is liable to be dismissed in limine.
However, considering the submission made by the counsel for the revision petitioner, this Court feels that a direction can be given to the court below to expedite disposal of O.S No.317 of 2014 pending before that court as expeditiously as possible, at any rate, before the court closes for summer vacation and the direction is given to expedite disposal of of the suit before court closes for summer vacation. The petitioner is permitted to withdraw the amount of cost deposited by the respondent as condition for allowing the applications.
Revision petition is dismissed in limine with the above observations and direction. Registry is directed to communicate this order to the court below immediately.
Sd/-
K.RAMAKRISHNAN , JUDGE
vdv/03/10/16
2 issues framed by the court
Whether the procedural delays and laches by the respondent by themselves warrant interference with the order allowing restoration of applications to set aside an ex parte decree.
Whether the High Court should direct the lower court to expedite the disposal of the underlying suit for mandatory injunction.
Sajitha Kumari
Prajith
K.Ramakrishnan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
