Partly allowed

Sam.K.Philip v. Mather Projects Private Limited

Kerala HC17 Oct 2016FAO/233/2016

Case brief

AI extract

What is this about?

The High Court declined to interfere with the lower court's discretion regarding the quantum of costs imposed for setting aside the dismissal of a suit. A conditional stay was granted allowing time for payment of costs to restore the suit; otherwise, the appeal is dismissed and costs affirmed.

What did the court decide?

Time granted to appellants to pay costs of ₹50,000/- by 30.11.2016; suit to be restored if complied with.

Sam.K.Philip Vs Mather Projects Private Limited — Execution and Attachment | Kerala HC (2016)

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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 & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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MONDAY, THE 17TH DAY OF OCTOBER 2016/25TH ASWINA, 1938

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FAO.No. 233 of 2016 ()

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AGAINST THE ORDER OF THE PRL.SUB COURT, ERNAKULAM IN I.A.No.4221/2016 IN O.S.No.285/2013 DTD.27.9.2016

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APPELLANTS :

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SAM.K.PHILIP S/O. K.K.PHILIP, KOLLAMVARIATH HOUSE, CHANGAMPUZHA NAGAR, COCHIN - 682 033.

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NISHA SAM W/O. SAM K.PHILIP, KOLLAMVARIATH HOUSE, CHANGAMPUZHA NAGAR, COCHIN - 682 033.

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BY ADV. SRI.S.B.PREMACHANDRA PRABHU

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RESPONDENT :

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MATHER PROJECTS PRIVATE LIMITED, 46/9143, KODIYATT CHAMBERS, RAJAJI ROAD, ERNAKULAM, KOCHI - 682 035.

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THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 17-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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V.CHITAMBARESH & ANIL K.NARENDRAN, JJ.

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F.A.O.No.233 of 2016

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Dated this the 17^th day of October, 2016

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JUDGMENT

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Chitambaresh, J.

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The court below has thought it fit to impose a costs of

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₹50,000/- as a condition for setting aside the dismissal of a suit

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and restoring the same to file. That the court has ample power to impose such terms as to costs or otherwise as it thinks fit is evident from a plain reading of Order IX Rule 9 of the Code of Civil Procedure.

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The court below has noticed that the suit was removed from the list twice earlier and that the suit was eventually dismissed for default on the third occasion. The court below has after all restored the suit and permitted the plaintiffs/appellants to prosecute the suit on merits after payment of costs.

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We do not think that the discretion exercised by the court below in fixing the quantum of costs should be tinkered with by this Court in exercise of Order XLIII Rule 1(c) of the Code of Civil Procedure. We however grant time to the appellants to pay costs of 50,000/- on or before ₹ 30.11.2016 .

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F.A.O.No.233 of 2016

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The court below shall restore the suit to file if the

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condition imposed is complied with by the appellants within the time extended as above.

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The impugned order will stand affirmed and the appeal dismissed in case the appellants fail to comply with the condition imposed as to costs.

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The appeal is dismissed.

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Sd/-

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V.CHITAMBARESH, JUDGE

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Sd/-

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ANIL K.NARENDRAN, JUDGE

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skj

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True copy

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P.A to Judge

Sam.K.Philip v. Mather Projects Private Limited

Case brief

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Sam.K.Philip v. Mather Projects Private Limited

Case brief

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