Dismissed

Shine Rama Bhadran v. Venugopala Pillai

Kerala HC5 Oct 2016OP(C)/1777/2015

Case brief

AI extract

What is this about?

In an application under Article 227 of the Constitution of India, the Kerala High Court dismissed the petition. It held that since the petitioner's applications to set aside an ex parte decree and condone delay were dismissed due to non-payment of costs, an appealable order was passed under Order 43 Rule 1(c) CPC. Therefore, the petition was not a fit case for writ jurisdiction, and an appeal was

What did the court decide?

The petition filed under Article 227 of the Constitution of India is dismissed, with the petitioner directed to file an appeal.

Shine Rama Bhadran Vs Venugopala Pillai — Contract and Commercial Disputes | 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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WEDNESDAY, THE 5TH DAY OF OCTOBER 2016/13TH ASWINA, 1938

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OP(C).No. 1777 of 2015 (O)

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ORDER DTD.13.2.2015 OF SUB COURT, KARUNAGAPPALLY

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PETITIONER(S)/PETITIONER:

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SHINE RAMA BHADRAN, AGED 35 YEARS, S/O.B. RAMA BHADRAN, BHADRA NIVAS, KOZHIKODE SVM P.O., S.V. MARKET, KARUNAGAPPALLY, KOLLAM, POWER OF ATTORNEY HOLDER OF RAJU, S/O.CHELLAPPAN, BHAMINI MANDIRAM, THODIYOOR VADAKKUM MURI, THODIYOOR VILLAGE, KARUNAGAPPALLY, KOLLAM.

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BY ADVS.SRI.BINU GEORGE SMT.HEMALATHA

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RESPONDENT(S)/RESPONDENT:

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VENUGOPALA PILLAI, S/O.RAMAKRISHNA PILLAI, PAMPUKALAYIL VEEDU, MANAKALA P.O., THUVAYOOR VADAKUM MURI, ENATHU VILLAGE, ADOOR, PATHANAMTHITTA - 691 523.

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BY ADV. SRI.P.K.SOYUZ

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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msv/

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OP(C).No. 1777 of 2015 (O) ---------------------------

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APPENDIX

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PETITIONER(S)' EXHIBITS

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P1:A TRUE COPY OF IA NO 157/2015

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P2:A TRUE COPY OF IA NO 158/2015

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P3:TRUE COPY OF ORDER DTD 13/2/2015 IN IA NO 157/2015 AND 158/2015

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RESPONDENT(S)' EXHIBITS

NIL

//TRUE COPY//

P.S.TO JUDGE

Msv/

K.RAMAKRISHNAN, J.

=================== O.P. (C). No.1777 of 2015

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=======================

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Dated this the 5^th day of October, 2016

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JUDGMENT

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This is an application filed by the petitioner challenging Ext.P3 order passed by the court below under Article 227 of the Constitution of India.

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It is alleged in the petition that the petitioner is the defendant in O.S.No.160 of 2013 on the file of Sub court, Karunagappally and that suit was filed by the respondent for realization of Rs.10,41,140/- with interest. According to the petitioner, he has not received any summons, as he was working in gulf in connection with his employment and substituted service was ordered and when he came to know about the same, he engaged Advocate Mannar G. Surendran Nair for contesting the case. But he died on 28.05.2014. He came to know about the death only later. By the time on 07.08.2014, lower court decreed the suit ex parte. Thereafter he filed I.A.157 of 2015 to set aside the ex parte decree along with I.A. No.158 of 2015 for condonation of delay and that petition was allowed on condition that he will have to pay a cost of Rs.25,000/- before next hearing date and it

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O.P. (C). No.1777 of 2015 2

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was posted to 27.02.2015 for payment of cost. Since the cost was not paid on that day, the applications were dismissed. Aggrieved by the same, the present petition has been filed.

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Heard Shri.Binu George, counsel appearing for the petitioner and Shri. P.K. Soyuz counsel appearing for the respondent.

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The counsel for the petitioner submitted that since the petitioner was in gulf, his Advocate expired and he has not informed about the cost payable and that was the reason why he could not pay the amount in time. So he prayed for allowing the application. The counsel also submitted that if sometime is granted he is able to pay the amount.

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The the counsel for the respondent submitted that it is

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an appealable order and application under Article 227 is not attracted.

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It is an admitted fact that the suit O.S.No.161 of 2013 was filed by the respondent against the petitioner for realization of Rs.10.41140/- with interest. Since summons was not served on

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the respondent on the ground that he is out of station, substituted service is ordered and when he came to know about the same, he entrusted Shri.Mannar G. Surendran Nair to contest the case. But

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O.P. (C). No.1777 of 2015 3

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he died on 28.05.2014 and only on 20.01.2015 he came to know about the death of the counsel and when he enquired about the same, he came to understand that on 07.8.2014 itself the suit was decreed ex parte. Immediately he filed Exts.P1 and P2 applications as I.A.157 of 2015 and 158 of 2015 and after condoning the delay in filing the applications and those applications were allowed on 13.02.2015 by Ext.P3 order directing the petitioner to deposit Rs.25,000/- as cost and posted the case to 27.02.2015 for payment of cost. Since the cost was not paid the applications were dismissed on that day. But the writ petition was filed on 22.07.2015. Once the application to set aside the ex parte decree is dismissed for non compliance of the directions, then it is an appealable order under Order 43 Rule 1(c) of Code of Civil Procedure. So the remedy of the petitioner is to file an appeal in which he can even challenge the condition imposed by the court below for setting aside the ex parte decree in that appeal as the conditional order is merged with the final order dismissing the applications for non-compliance to the condition. When an appeal is provided, the remedy of the petitioner is to file an appeal before the appropriate court and seek his remedy and not to file an application under Article 227 of the Constitution of India. So

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O.P. (C). No.1777 of 2015 4

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this court feels that it is not a fit case to invoke the power under Article 227 of the Constitution of India. The petitioner can very well file an appeal against the final order with the delay condonation application and the time taken by the petitioner before for prosecuting this writ petition can be considered by that court under Section 14 of the Limitation Act.

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With the above directions, the petition is dismissed.

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K.RAMAKRISHNAN, JUDGE

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SKV

Shine Rama Bhadran v. Venugopala Pillai

Case brief

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Shine Rama Bhadran v. Venugopala Pillai

Case brief

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