This original petition challenges the District Judge's order which set aside a condition for payment of costs to restore an ex parte decree. The High Court dismissed the petition, holding that the trial court's order on costs was just and the District Judge's decision not to order costs was within his discretion under Article 227.
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.ABRAHAM MATHEW
THURSDAY, THE 4TH DAY OF FEBRUARY 2016/15TH MAGHA, 1937
OP(C).No. 156 of 2016 (O)
-------------------------CMA. NO.49/2013 OF DISTRICT COURT, THODUPUZHA.
PETITIONER/RESPONDENT:
M.R. GOPI, KARAMKUNNATHU HOUSE, VAZHITHALA P.O., PURAPUZHA VILLAGE, THODUPUZHA TALUK. BY ADV. SRI.M.TRIPTEN.
RESPONDENT/APPELLANT:
KOCHUTHRESSIA, AGED 51 YEARS, W/O. XAVIER, NERIAMPARAMBIL HOUSE, KADAVOOR KARA, KADAVOOR VILLAGE, ERNAKULAM DISTRICT, REPRESENTED BY POWER OF ATTORNEY HOLDER K.M. MARY, AGED 66 YEARS, W/O.JOY P.MATHEW, RETIRED BSNL ENGINEER, PLANTHOTTEM HOUSE, OLIYAPURAM P.O., KOOTHATTUKULAM, ERNAKULAM DISTRICT- 686 662.
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 04-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
rs.
OP(C).No. 156 of 2016 (O)
APPENDIX
PETITIONER'S EXHIBITS:-
RESPONDENT'S EXHIBITS:- NIL.
//TRUE COPY//
P.S. TO JUDGE
rs.
K.ABRAHAM MATHEW J.
O.P.(C)No.156 of 2016
Dated this the 4th day of February, 2016
JUDGMENT
Petitioner is the plaintiff in A.S.No.72 of 2002 of Sub Court, Thodupuzha. The suit is for recovery of money. An ex parte decree was passed against the respondent/defendant. The petition filed by her to set aside the ex parte decree was allowed by the trial court after condoning the delay. The order is extracted below:
“The petitioner shall pay cost at the rate of Rs.50/- per day in condoning the delay of 2041 days in filing the restoration application to set aside the ex parte decree and the case will be restored on file on paying the aforesaid cost on 12.8.2013. The petitioner shall adduce evidence on 12.9.2013 on the date, when this case will be in the list on paying costs. Failing to comply any of the aforesaid conditions, the petitions shall stand dismissed.”
In CMA No.49 of 2013 the learned District Judge set aside the order to the extent it directed payment of costs for condoning the delay. This is challenged.
O.P.(C)No.156 of 2016 2
the order. The complaint of the petitioner is that no costs was ordered by the District Judge. Costs is in the discretion of the court. Ordinarily, this court will not interfere with the discretion exercised by the court below unless it is perverse. I do not think that in this case under Article 227 of the Constitution the order passed by the District Judge can be interfered with.
In the result, this Original Petition is dismissed.
Sd/- K.ABRAHAM MATHEW JUDGE
cms
/True copy/ P.S.to Judge
2 issues framed by the court
Whether the High Court can interfere with the discretion of the District Judge under Article 227 of the Constitution regarding costs.
Whether the dismissal of the restoration application by setting aside only the costs condition is sustainable under Article 227 of the Constitution.
1 provisions across 1 enactments
M.R. GOPI
KOCHUTHRESSIA
K. ABRAHAM MATHEW
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
