Allowed

Thachan Baby v. Suresh Kumar P.P.

Kerala HC8 Feb 2016FAO/260/2013

Case brief

AI extract

What is this about?

The High Court allowed an appeal against the dismissal of applications to set aside an ex parte decree in a suit for specific performance. Despite the appellant's laches, the Court quashed the lower court order, allowing reliefs on the condition that the appellant pays litigation costs to the opposite party's counsel within three weeks. The Court mandated a final decision by the lower court within

What did the court decide?

IA No.1446/2012 and 1447/2012 allowed on condition of payment of Rs.25,000 towards litigation costs.

Thachan Baby Vs Suresh Kumar P.P. — Specific Performance | 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 P.B.SURESH KUMAR

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MONDAY, THE 8TH DAY OF FEBRUARY 2016/19TH MAGHA, 1937

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FAO.No. 260 of 2013 ()

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AGAINST THE ORDER DATED 27.3.2013 IN I.A. NO.1446/2012

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IN O.S. NO.514/2009 ON THE FILE OF OF SUB COURT, KANNUR

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APPELLANT/PETITIONER:

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THACHAN BOBY, D/O.BALAKRISHNAN, ENGINEER, SREEVALSAM PAPPINISSERY AMSOM, AROLI DESAM, NEAR NADACHERY KAVU KANNUR.

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BY ADVS.SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH SMT.R.LEELA

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RESPONDENT/RESPONDENT:

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SURESHKUMAR P.P., S/O.KRISHNAN NAMBIAR, P.P.HOUSE, CHERUKUNNU POST KANNUR. 670 301.

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R1 BY ADV. SRI.A.C.VENUGOPAL

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THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 08-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

SKV

P.B.SURESH KUMAR, J.

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FAO No. 260 of 2013

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Dated this the 8^th day of February, 2016

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JUDGMENT

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The defendant in a suit for specific performance

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is the appellant in this appeal.

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On 13.1.2010, the defendant was set ex

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parte in the suit. Thereupon, she filed IA No.368/2010 seeking orders to set aside the ex parte order passed against her. The said application was allowed by the court on 24.2.2010. Later, when the case came up for trial, the defendant remained absent again. Consequently, the suit was decreed ex parte on 15.6.2010. Thereupon, the defendant filed I.A No.1447/2012 seeking orders to set aside the ex parte decree against her along with I.A No.1446/2012 seeking orders to condone the delay of 654 days in filing I.A No.1447/2012. I.A No.1446/012 was

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dismissed by the court below holding that the defendant has not made out sufficient cause for condoning the delay in

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FAO No. 260 of 2013 2

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filing I.A No.1447/2012. Consequent on the decision in I.A.No.1446/2012, I.A. No.1447/2012 was also dismissed.

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Aggrieved by the orders passed in the said interlocutory applications, the defendant has come up in this appeal.

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The reason stated by the defendant in the affidavit filed in support of I.A.No.1446/2012 for not moving the court for setting aside the ex parte decree against her on time was that her husband was undergoing treatment at Bangalore during the relevant time and that therefore, she had to stay with him at Bangalore to look after him. It is also stated by the defendant in the affidavit filed in support of the said application that she met with an accident thereafter and therefore, even after she came back from Bangalore, she could not make arrangements for moving the court below to set aside the ex parte decree against her in the suit. The court below found that the defendant has not established the reason stated by her for the delay in moving the court f or setting aside the ex parte decree passed against her. A perusal of the order indicates that the court below is justified in holding so as there is

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FAO No. 260 of 2013 3

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absolutely no material before the court to substantiate the reasons stated by the defendant for the delay in moving the court for setting aside the ex parte decree against her.

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As noted above, the suit is one for specific performance of an agreement for sale. It is seen that the extent of property agreed to be sold by the defendant, going by the case set up by the plaintiff, is 13.25 cents. In the light of the stakes involved in this matter, I am of the view that interests of justice demand that the defendant shall be given an opportunity to defend the case on merits. Of course, in the light of the demonstrated laches and neglects on the part of the defendant, she can be afforded an opportunity to contest the matter only on terms, as the respondent must have incurred substantial amounts towards litigation expenses for reasons attributable to the defendant.

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In the result, the impugned order is set aside and I.A.Nos.1446/2012 and 1447/2012 are allowed on condition that the appellant shall pay a sum of Rs.25,000/(Rupees Twenty five thousand only) to the learned counsel

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FAO No. 260 of 2013 4

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for the respondent before this Court within three weeks from today by way of costs. In the event of the appellant remitting the costs ordered as per this judgment, the court below shall decide the suit finally within four months from the date of receipt of a copy of this judgment. It is made clear that the defendant is free to move the court below for refund of the amount deposited pursuant to the interim order passed by this Court in this appeal on 24.9.2013. It is also made clear that I have not considered the merits of the rival contentions of the parties and the suit has to be decided in accordance with law.

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The appeal is allowed as above. All the

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interlocutory applications in the appeal are closed.

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Sd/-

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P.B.SURESH KUMAR, JUDGE

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SKV

Thachan Baby v. Suresh Kumar P.P.

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Thachan Baby v. Suresh Kumar P.P.

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