Remanded

Kusalakumari v. Viswambharan

Kerala HC21 Oct 2016OP(C)/2436/2016

Case brief

AI extract

What is this about?

High Court under Article 227 directed Sub Court to expedite disposal of the underlying suit O.S. 104/2012 by first completing the indigent person enquiry and then adjudicating the suit within eight months. The court emphasized the hardship caused by long pendency and requested joint trial consideration for related suits.

What did the court decide?

Directed Sub Court to expedite disposal of O.S. 104/2012 by completing indigent person enquiry and deciding the suit within eight months.

Kusalakumari Vs Viswambharan — Civil Procedure and Limitation | 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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FRIDAY, THE 21ST DAY OF OCTOBER 2016/29TH ASWINA, 1938

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OP(C).No. 2436 of 2016 (O)

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--------------------------OS.NO. 104/2012 OF II ADDL.SUB COURT, THIRUVANANTHAPURAM

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PETITIONER/DEFENDANT:

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KUSALAKUMARI, AGED 54 YEARS, D/O. CHANDRAMATHI, ADARSHBHAVAN, PARUTHIPPARA, ULLOOR, THIRUVANANTHAPURAM.

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BY ADVS.SRI.SAJU.S.A

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SMT.MEENA.A. SRI.VINOD RAVINDRANATH

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RESPONDENT/PLAINTIFF:

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VISWAMBHARAN, AGED 62 YEARS, S/O. RAMAN NADAR, VIPINBHAVAN, KAZHUVOOR, KANIRANKULAM VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM, PIN-695 121.

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 21-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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OP(C).No. 2436 of 2016 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1 TRUE COPY OF THE PLAINT DATED 13-01-2012 ON THE FILES OF THE II ADDL. SUB COURT, THIRUVANANTHAPURAM. EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT DATED 07-09-2012 FILED BY THE DEFENDANT. EXHIBIT P3 TRUE COPY OF I.A. 3812/15 DT. 26-10-2015 FILED BY THE PLAINTIFF. EXHIBIT P4 TRUE COPY OF THE OBJECTION DT. 17-02-2016 FILED BY THE DEFENDANT. EXHIBIT P5 TRUE COPY OF I.A. 1062/16 DATED 18-3-2016. EXHIBIT P6 TRUE COPY OF I.A. 1061/16 DT. 18-3-2016 FILED BY THE PETITIONER BEFORE THE PRINCIPAL SUB COURT, THIRUVANANTHAPURAM. EXHIBIT P7 TRUE COPY OF THE CASE DETAILS OF O.S.104/2012 ON THE FILES OF THE SECOND ADDITIONAL SUB COURT, THIRUVANANTHAPURAM.

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RESPONDENT(S)' EXHIBITS:

NIL

/TRUE COPY/

P.A.TO JUDGE

sts

K.RAMAKRISHNAN, J.

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O.P.(C) No.2436 of 2016

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Dated this the 21^st day of October, 2016

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JUDGMENT

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This petition is filed by the petitioner seeking direction to be given to the 2^nd Additional Sub Court, Thiruvananthapuram to expedite disposal of O.S.104/2012 pending before that court 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.104/2012 pending before the Additional Sub Court, Thiruvananthapuram evidenced by Ext.P1, which was filed by the respondent. The petitioner filed Ext.P2 written statement. She is aged 62 years. The case was posted for payment of balance court fee and steps. The plaintiff filed Ext.P3 application as I.A.3812/2015 to declare him as indigent person and permitting him to proceed with the suit as an indigent person. Petitioner filed Ext.P4 objection to the same. Petitioner also filed Ext.P5 petition to advance hearing as I.A.1062/2016, but there was no sitting in that court for sometime, it is being posted along with the suit. Though petitions have been filed for early disposal of the case, no fruitful effect had taken place. So the petitioner has no other remedy, except to approach this court, seeking the following reliefs:

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a. The court below is not justified in not disposing of Ext.P3

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O.P.(C) No.2436 of 2016

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petition filed by the plaintiff.

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b. The plaintiff is a widow and is struggling for giving proper education to her children. The petitioner who has availed housing loan from the bank is finding it difficult to pay the loan instalments. Due to the interim order of attachment, the petitioner cannot sell any portion of the property and clear her financial burden. The long pendency of the suit which was filed as early in 2012 is causing much hardship and inconvenience.

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c. Ext.P3 I.A. was filed by the plaintiff as early on 26.10.2015 and the same is pending nearly for the last one year.

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Considering the nature of relief claimed, this court felt that

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the petition can be disposed of after getting a report from the court below regarding the present stage and time required for disposal of the case. So a report has been called for and the learned Sub Judge has sent a report which reads as follows:

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“O.S.104/2012 is case filed by Mr.Viswambaran, S/o.Raman Nadar. Vipin Bhavan, Kazhuvoor, Kanjiramkulam Village, Neyyattinkara Taluk, Thiruvananthapuram District against Kusala Kumari, D/o.Chandramathi, Adarsh Bhavan, Paruthipara, T.C.3/133, Ulloor Village, Pattom P.O., Thiruvananthapuram District for realisation of a sum of Rs.7,00,250/- (Rupees Seven Lakh Two Hundred and Fifty only). The case of plaintiff is that he was entrusted with the construction work of a residential building in the property of the defendant as per agreement dated 07.08.2010. The plaintiff constructed the building spending money to the tune of Rs.7,00,000/-. The defendant paid only Rs.4,00,000/- for the construction of building and the balance amount due is shown in the statement of account annexed to the plaint as the amount to be realised from the defendant. The defendant entered appearance and filed written statement denying the quantum amount payable to the plaintiff. According to the defendant the plaintiff had not completed the construction of building in terms of the agreement and he did not do the work within the stipulated time. The plaintiff has also filed another suit as O.S.212/2012 seeking for a decree of permanent prohibitory injunction before the Munsiff Court, Thiruvananthapuram

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O.P.(C) No.2436 of 2016

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based on the same cause of action and the application for interim injunction filed by the plaintiff has been dismissed with costs. It is seen from the record that the above O.S.212/2012 has been transferred to this court as per Order in OP(TP) No.73/2014 dated 07.07.2014 of the Hon'ble District Court and it is renumbered as O.S.148/2014. In O.S.104/2012 issues have been framed. Thereafter the plaintiff filed I.A.3812/2015 under Order 33 Rule 1 of CPC seeking the leave of the court to continue with the suit as an indigent person and exempt him from payment of balance court fee. The defendant has filed objection on 20.02.2016. The above application is pending disposal awaiting the report of Village Officer concerned as to the value of asset if any held by the plaintiff and enquiry. The above interlocutory application is to be decided before proceeding further in O.S.104/2012.”

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Heard the counsel for the petitioner Smt.Meena A., who argued in support of the case in the petition and perused the report.

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It is seen from the report that apart from this suit, there is another suit is also seen transfered from Musiff Court to Sub Court as per order in O.P.(T.P)73/2014 dated 07.07.2014 of District Court, Thiruvananthapuram and that was numbered as O.S.148/2014 on the file of the same court. However it is seen from the report that, the application filed by the plaintiff in O.S.104/2012 to permit him to file the suit as indigent person is pending awaiting the report of the village officer regarding the means of the plaintiff to pay balance court fee. However, the court below had expressed willingness to dispose of the suit itself after conducting the enquiry in that application also within eight months. So this court feels that the petition can be disposed of

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O.P.(C) No.2436 of 2016

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accepting the report of the court below as follows:

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The 2^nd Additional Sub Judge, Thiruvananthapuram is directed to expedite disposal of O.S.104/2012 pending before that court after completing the enquiry in I.A.3812/2015 pending in that suit for permitting the plaintiff to proceed with the case as an indigent person and then dispose of the suit itself as expeditiously as possible at any rate within eight months from the date of receipt of this judgment as undertaken in the report. If O.S.212/2012 is also having any connection with the same matter between the same parties, then that also can be considered by that court and take earnest attempt to dispose of that suit also along with this suit. If the court feels that joint trial is required for that purpose, if an application is being made by the parties to that effect, that also can be considered by the court below and pass appropriate orders in that application in accordance with law.

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

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Sd/- (K. Ramakrishnan, Judge)

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Kusalakumari v. Viswambharan

Case brief

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Kusalakumari v. Viswambharan

Case brief

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