Allowed

Soorya Narayanan v. D.Krishnankutty

Kerala HC10 Nov 2016OP(C)/1323/2016

Case brief

AI extract

What is this about?

The High Court set aside impugned orders dismissing petitions to set aside an ex parte decree and condone delay in a property suit, directing restoration of the suit upon payment of costs.

What did the court decide?

The orders passing exts.P1 and P2 are set aside. The applications to set aside the ex parte decree and condone delay are allowed on the condition that the petitioner pays Rs.10,000 as costs within a w

Soorya Narayanan Vs D.Krishnankutty — Property and Title | 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 K.RAMAKRISHNAN

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THURSDAY, THE 10TH DAY OF NOVEMBER 2016/19TH KARTHIKA, 1938

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OP(C).No. 1323 of 2016 (O)

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CMA. 109/2011 OF I ADDL. DISTRICT COURT, PALAKKAD IA.NO.2215/2011 & 2216/2011 IN OS 385/2009 OF PRL. MUNSIFF COURT, PALAKKAD

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PETITIONER(S):

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SOORYA NARAYANAN, S/O.BALAKRISHNAN NAIR, AGED 50, PUTHANVEEDU, PUTHUPARAIYARAM AMSOM, PALAKKAD DISTRICT

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BY ADVS.SRI.HARISH R. MENON SRI.K.T.SHYAMKUMAR

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RESPONDENT(S):

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D.KRISHNANKUTTY, S/O.LATE KRISHNAN NAIR, AGED 64, MANI MANDHIRAM, KANHIKULAM, PALAKKAD DISTRICT, PIN - 678 024.

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BY ADVS. SRI.SAJAN VARGHEESE K. SRI.LIJU M.P.

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 10-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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msv/

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OP(C).No. 1323 of 2016 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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P1 A TRUE COPY OF THE ORDER DATED 24.10.2011 IN IA. NO. 2215/2011 AND 2216/2011

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P2 TRUE COPY OF THE ORDER PASSED IN CMA NO. 109/2011

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RESPONDENT(S)' EXHIBITS

NIL

//TRUE COPY//

P.S.TO JUDGE

msv/

K.RAMAKRISHNAN, J.

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O.P.(C). No.1323 of 2016

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======================= Dated this the 10^th day of November, 2016

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JUDGMENT

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This is an application filed by the petitioner challenging Exts.P1 and P2 orders passed by the courts below under Article 227 of the Constitution of India.

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It is alleged in the petition that petitioner is the defendant in O.S.385 of 2009 Principal Munsiff Court, Palakkad which was filed by the respondent herein for permanent prohibitory injunction restraining from trespassing the plaint schedule property. The petitioner entered appearance and filed written statement denying the right of the petitioner, thereafter the case was listed, but on that day he could not appear. So the suit was decreed ex parte. On 17.01.2011 the petitioner filed I.A.2215 of 2011 and 2216 of 2011 to set aside the ex parte decree along with delay condonation application of condoning the delay of 185 days

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in filing the application stating that he was in Bombay in connection with the employment. So he could not appear and that

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was the reason for non-appearance. After evidence, the petitions

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O.P.(C).No.1323 of 2016 2

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were dismissed evidenced by Ext.P1. Thereafter the petitioner filed CMA 109 of 2011 and that was also dismissed by the appellate court evidenced by Ext.P2 jdugment. Aggrieved by the same, the present petition has been filed.

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Heard Shri. Hareesh R. Menon, learned counsel appearing for the petitioner and Shri. Sajan Varghese and Liju M.P. learned counsel appearing for the respondent.

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Learned counsel for the petitioner submitted that the

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petitioner was in Bombay in connection with the employment and he did not receive notice regarding the case. So he could not

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appear. He gave evidence as PW1, but court below had not properly appreciated the same. The appellate court also did not appreciate the same properly. Further, even assuming that there was some latches that could have been condoned on payment of cost, but that was not done by the courts below.

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On the other hand , the learned counsel for the respondent submitted that earlier ex parte decreed was obtained on 4.3.2010 and that was later set aside and in spite of that, he was not diligent in prosecuting the case. So it is only delaying tactics that such an application has been filed.

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O.P.(C).No.1323 of 2016 3

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It is an admitted fact that the suit O.S.385 of 2009 was filed by the respondent herein before Principal Munsiff Court Palakkad by the respondent herein for permanent prohibitory injunction restraining the defendant who is the petitioner herein from trespassing the plaint schedule property. It is also an admitted fact that the petitioner entered appearance and filed written statement denying the allegations and praying for dismissal of the suit. It is not in dispute that earlier the suit was decreed ex parte for non appearance of the petitioner on 4.03.2010 and later on his application, after a period of one year on the ground that he was laid up, it was set aside and it was posted for trial. It is thereafter, that the petitioner did not appear and it was again decreed ex parte and the present petition has also filed with a petition to condone the delay of 185 days in filing the application. These facts were not in dispute. It was alleged in the petition that he was in Bombay in connection with business and that was the reason why he could not appear. The court below was not justified in taking the latches on the part of the petitioner in not appearing earlier and filing application to set aside the ex parte decree with delay condonation application as a ground to assess the conduct

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O.P.(C).No.1323 of 2016 4

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of the petitioner as it is settled law that once earlier latches has been condoned, and that application was allowed, that cannot be taken as a ground for rejecting the subsequent application to set aside the ex parte decree passed. In this case, it was mentioned that he was in Bombay. He went to witness box and gave evidence at least, he had made an attempt to show sufficient cause for his non appearance. It is not a case where he did not adduce evidence at all. It cannot be said that there was no latches on the part of the petitioner in not prosecuting the case diligently. There was some inconvenience caused to other side on account of the same as well. But at the same time, it is settled law that court must be liberal in considering the application to set aside the ex parte decree or the petition to restore the suit dismissed for default under Order 9 Rule 13 or under Order 9 Rule 9 of Code of Civil Procedure and even if the court feels that there was some latches which has caused in convenience to the other sides, then that can be compensated by awarding reasonable cost. The court below ought to have adopted the second method instead of dismissing the application by awarding reasonable cost. Further it is case involving immovable property. So an opportunity

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O.P.(C).No.1323 of 2016 5

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must be given to the parties to meet the case on merit as well. So considering the circumstances, this Court feels that the orders passed by the court below has to be interfered but at the same time, that can be done only on payment of cost. So the petition is allowed and the orders passed by the court below dismissing the applications I.A.2215 of 2011 and 2216 of 2011 in O.S.385 of 2009

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on the file of of Munsiff Court Palakkad by Ext.P1 order by the trial court and confirmed by Ext.P2 judgment by the appellate court are set aside and the applications are allowed on condition that the petitioner shall pay a cost of Rs.10,000/- out of which, Rs.7,500/be paid to the counsel for the respondent within a week from today and also to pay the balance amount of Rs.2,500 to Kerala State Mediation and Conciliation Centre within that time. If the cost is paid and proof of payment of cost is produced before the courts below within two weeks from today, then court below is directed to set aside the ex parte decree and restore the suit to file and dispose of the case afresh in accordance with law. If the condition is not complied with, then the order passed by the court below confirmed by the appellate court will stand revive. Considering the fact that the case is of the year 2009, the court

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O.P.(C).No.1323 of 2016 6

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below is directed to expedite disposal of the case as expeditiously

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possible at any rate within three months from the date of restoring the suit to file

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With the above directions and observations the petition is disposed of .

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Registry is directed to communicate this judgment to the court below at th earliest.

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Sd/-

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K.RAMAKRISHNAN, JUDGE

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SKV

Soorya Narayanan v. D.Krishnankutty

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Soorya Narayanan v. D.Krishnankutty

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