Allowed

M/S.Periyanayaki Project Pvt.Ltd. v. Valsalan

Kerala HC25 Aug 2016OP(C)/4249/2011

Case brief

AI extract

What is this about?

A petition under Article 226 challenging the dismissal of restoration applications for a suit dismissed for default. The High Court allowed the petition on payment of costs, set aside the lower court's order, and directed restoration of the suit.

What did the court decide?

Order dismissing restoration applications and suit dismissal set aside; suit restored to file upon payment of Rs. 5,000 costs.

M/S.Periyanayaki Project Pvt.Ltd. Vs Valsalan — 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 K.RAMAKRISHNAN

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THURSDAY, THE 25TH DAY OF AUGUST 2016/3RD BHADRA, 1938

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OP(C).No. 4249 of 2011 (O)

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OS 89/2007 OF SUB COURT, KOCHI.

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PETITIONER:

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M/S.PERIYANAYAKI PROJECT PVT. LTD., RAGHAVEERA AVENUE, 13, CHENNAI-86, REPRESENTED BY LAND PROCUREMENT MANAGER, NAJEEM AHAMMED, AGED 45 YEARS, S/O.MOIDEEN AHAMMED, RESIDING AT FLAT NO.8-C, SWAPNIL APARTMENT, KALOOR-KADAVANTHRA ROAD, COCHIN-17.

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BY ADVS.SRI.G.P.SHINOD SRI.MANU V. SRI.RAM MOHAN.G.

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RESPONDENT:

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VALSALAN, PENSIONER, S/O.K.N.ACHUTHAN PILLAI, RESIDING AT KIZHAKKE KANATTU VEETTIL, PARAVOOTHARA MURI, PARAVOOR PAKUTHI, PARUR-683513, PARUR TALUK, ERNAKULAM.

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BY ADV.SRI.V.K.UNNIKRISHNAN

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 25-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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mbr/

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OP(C).No. 4249 of 2011 (O)

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APPENDIX

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PETITIONERS’ EXHIBITS:

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EXT. P1 : A TRUE COPY OF THE I.A.NO.1203 OF 2010 IN IA.NO.1379 OF 2008 IN OS.NO.89 OF 2007 FILED BY THE PETITIONER BEFORE THE SUB COURT, KOCHI.

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EXT. P2 : A TRUE COPY OF THE I.A.NO.1202 OF 2010 IN IA.NO.1379 OF 2008 IN OS.NO.9 OF 2007 FILD BY THE PETITIONER BEFORE THE SUB COURT,KOCHI.

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EXT. P3 : A TRUE COPY OF THE COMMON ORDER DATED 18.12.2010 PASSED BY THE SUB COURT, KOCHI IN IA.NOS.1202 OF 2010 AND 1203 OF 2010 IN IA.NO.1379 OF 2008 IN OS.NO.89 OF 2007.

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RESPONDENTS' EXHIBITS:

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EXT.R1 : A TRUE COPY OF THE AFFIDAVIT FILED BY THE PEITTIONER IN OS.NO.129/2014 BEFORE THE HON’BLE SUB COURT, ERNAKULAM.

//TRUE COPY//

P.S. TO JUDGE

mbr/

K. RAMAKRISHNAN, J.

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O.P.(C)No.4249 of 2011

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....................................................... Dated this the 25^th day of August, 2016.

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JUDGMENT

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This is a petition filed by the petitioner challenging Ext.P3 order in IA.No.1202/2010 and IA.No.1203/2010 in IA.No.1379/2008 in OS.No.89/2007 on the file of the Sub Court, Kochi under Article 227 of the Constitution of India.

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It is alleged in the petition that the petitioner filed O.S.No.89/2007 for specific performance of an agreement of sale dated 21.2.2006 said to have been executed between the petitioner and the respondent. The respondent filed a written statement denying the allegations and prayed for dismissal of the suit. The suit was listed for trial on 2.7.2008. On that day, the petitioner filed IA.No.335/2008 for removing the case from the list, but the court below dismissed that application and consequently dismissed the suit also for default. Thereafter the petitioner filed I.A.No.1379/2009 for restoring the suit dismissed for default with a delay of 2 days in filing the application. That petition was posted to 28.1.2009. But on that day since the counsel for the petitioner was out of station, it was entrusted to some other lawyer but that lawyer could not make proper representation. Accordingly that petition was dismissed for default. Thereafter when the petitioner came to know about the dismissal of the applications, he filed Exts.P1 and P2 ie., IA.Nos.1203/2010 and

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O.P.(C)No.4249 of 2011 2

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1202/2010 for restoration of the petition IA.No.1379/2008 after condoning the delay of 521 days in filing the restoration application. After hearing both sides, the court below dismissed both the applications as per Ext.P3 common order which is being challenged by the petitioner by filing this petition

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Heard Sri. Govind Padmanabhan, counsel representing Shinod G.P, counsel for the petitioner and Sri. V.K, Unnikrishnan, counsel appearing for the respondent.

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When the petition came up for hearing today, counsel for the petitioner submitted that there were number of cases between the petitioner and other parties of similar nature and in all these cases, suits were dismissed for default and an application to restore the suit was filed and that was dismissed on merits. That was challenged by the petitioner by filing FAO.No.249/2014 and other connected FAOs and all these matters were disposed of by a Division Bench of this court by common judgment dated 25.6.2015 allowing those appeals on payment of costs of Rs.5,000/- to the respondent and counsel for the petitioner submitted that similar order may be passed in this petition also. Counsel for the respondent also submitted that he has no objection in passing such an order.

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It is an admitted fact that the petitioner filed OS.No.89/2007 before the Sub Court, Kochi for specific

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O.P.(C)No.4249 of 2011

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performance of a contract of sale said to have been entered into between the petitioner and the respondent. It is also an admitted fact that the suit was posted in the special list on a particular day and on that day the petitioner moved for adjournment and remove the case from the list and that petition was dismissed and consequently the suit was also dismissed for default. It is also an admitted fact that the petitioner filed IA.No.1379/2008 to restore the suit dismissed for default. But that was also later dismissed for non prosecution and thereafter the present petitions Exts.P1 and P2 were filed to restore that applications along with a delay condonation application of condoning the delay of 521 days in filing the application. That petition was dismissed by the court below by Ext.P3 common order wherein the court below was found that the petitioner has not only proved sufficient reason for non appearance in these cases of condoning the delay, but also there is no sufficient ground made out for restoring the suit dismissed for default as well. So considering the circumstances, even if this court set aside this order and send back the case for consideration of IA.No.1379/2008 by the court below, it is likely to be moved away by the court below while considering the application to restore the suit dismissed for default. Considering the circumstances and also considering the fact that the suit is for specific performance and in similar matters this court has restored the suits on payment

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O.P.(C)No.4249 of 2011

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of costs of Rs.5,000/-, this court feels that the same yardstick can be applied in this case also. So the petition is allowed on condition that the petitioner shall pay a cost of Rs.5,000/- to the counsel for the respondent herein within a period of two weeks from today and if the cost is paid, then the order passed by the court below in IA.Nos.1202/2010, 1203/2010 and 1379/2008 and also the order of dismissal passed in IA.No.1379/2008 in OS.No.89/2007 will be set aside and the suit will be restored to file. If the petitioner did not pay the amount within the time mentioned above and produce proof of payment of such cost before the court below as directed by this court, then the order of dismissal passed by the court below will remain in force and this petition will stand dismissed. If the petitioner produces proof of payment of costs before the court below within the time specified by this court, then the court below is directed to restore the suit to file and proceed with disposal of OS.No.89/2007 in accordance with law.

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With the above directions and observations, this petition is disposed of. Registry is directed to communicate a copy of this judgment to the court below at the earliest.

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K. RAMAKRISHNAN, JUDGE.

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O.P.(C)No.4249 of 2011 5

M/S.Periyanayaki Project Pvt.Ltd. v. Valsalan

Case brief

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M/S.Periyanayaki Project Pvt.Ltd. v. Valsalan

Case brief

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