Dismissed

Dr.Joy P Chungath v. M/S. Godrej Boyce Manufacturing Co.Ltd.

Kerala HC11 Jan 2017CRP/235/2016

Case brief

AI extract

What is this about?

This is a civil revision petition challenging an order dismissing applications for setting aside an ex parte decree. The High Court found no jurisdictional error in allowing restoration after costs were deposited and dismissed the revision, while directing expeditious disposal of the underlying suit.

What did the court decide?

The civil revision petition is dismissed. The court below is directed to dispose of the suit before summer vacation.

Dr.Joy P Chungath Vs M/S. Godrej Boyce Manufacturing… — Execution and Attachment | Kerala HC (2017)

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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 A.MUHAMED MUSTAQUE

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WEDNESDAY, THE 11TH DAY OF JANUARY 2017/21ST POUSHA, 1938

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CRP.No. 235 of 2016 () ----------------------

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IA.NO.944/2016 IN IA.NO.2324/2015 & IA.NO.945/2016 IN IA.NO.2325/2015 IN O.S.NO.228/2005 OF II ADDITIONAL SUB COURT, ERNAKULAM.

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REVISION PETITIONER/RESPONDENT/PLAINTIFF :

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DR.JOY P CHUNGATH, AGED 70 YEARS, S/O.PAVUNNY, 'CHUNGATH', VALANJAMBALAM, KOCHI-16, REPRESENTED BY POWER OF ATTORNEY HOLDER MRS.ALFO JOY, W/O.DR.JOY P.CHUNGATH, AGED 62 YEARS, 'CHUNGATH', VALANJAMBALAM, KOCHI-16.

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BY ADVS.SRI.A.KUMAR

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SRI.P.J.ANILKUMAR SMTG.MINI(1748) SRI.P.S.SREE PRASAD SRI.JACOB JOHN (TRIVANDRUM)

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RESPONDENT/PETITIONER/DEFENDANT :

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M/S. GODREJ BOYCE MANUFACTURING CO.LTD., 2ND FLOOR, ANGLES ARCADE, COCHIN UNIVERSITY P.O., SOUTH KALAMASSERRY P.O., ERNAKULAM-682 022.

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BY ADV. SRI.P.MARTIN JOSE

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11-01-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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mbr/

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A.MUHAMED MUSTAQUE, J.

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========================= C.R.P.No.235/2016

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The revision petitioner is the plaintiff in O.S.No.228 fo 2005 on the file of the court of the Additional Sub Judge-II, Ernakulam.

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The brief facts involved in this case are that:

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The suit filed by the respondent/defendant was decreed ex parte against which they filed I.A.No.2325/2015 to set aside the ex parte decree along with I.A.No.2324/2015 to condone the delay in filing the application. Those applications were allowed on payment of costs and the court below posted the matter to 3.2.2016 for payment of costs. On that day, neither the defendant nor his counsel appeared, accordingly, it was dismissed. Thereafter, the

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CRP 235/2016

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-:2:-

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defendant filed an application as I.A.Nos.944 of 2016 and 945/2016 to restore the earlier applications and also to permit him to pay costs. It is to be noted that the respondent/defendant deposited costs on 12.2.2016 and filed a memo. The petitioner’s case is that there was no time fixed for payment of costs. However, it is admitted that on 3.2.2016, the defendant could not appear as the advocate clerk noted a different date. Therefore, the court below, taking note of the fact that the defendant has already deposited costs on 12.2.2016 and there was no time fixed in the petition allowing ex parte decree, allowed the applications filed to restore the applications dismissed for default and also permitted the defendant to pay costs. It is impugning these orders, this revision petition is filed.

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The learned counsel for the petitioner would urge that the court below erred in allowing the applications. The learned counsel submitted that the defendant had earlier filed two applications for restoration, I.A.Nos.777/2016 and

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CRP 235/2016

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-:3:-

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778/2016 to restore I.A.Nos.2324/2015 and 2325/2015 and

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pending I.A.Nos.777/2016 and 778/2016 the defendant filed I.A.Nos.944/2016 and 945/2015. The petitioner was given only a copy in I.A.Nos.777/2016 and 778/2016. It is submitted that in both the applications, the relief sought for is one and the same.

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It is submitted by the learned counsel for the defendant that after the defendant filed IA.Nos.777/2016 and 778/2o16, those applications were misplaced from the files of the court below and therefore, they filed fresh I.A.Nos.944/2016 and 945/2016. The learned counsel for the petitioner points out that there was no mentioning about I.A.Nos.777/2016 and 778/2016 in the impugned order. As

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the matter stands now, no order is passed on I.A.Nos.777/2016 and 778/2016. The impugned order is passed on I.A.Nos.944/2016 and 945/2016. The petitioner’s case is that he was not given copies of I.A.Nos.944/2016 and 945/2016. It is not seen from the impugned order

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CRP 235/2016

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-:4:-

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whether the petitioner was given copies or not. As a matter of fact, the petitioner was heard while passing the order. If the petitioner/plaintiff had any grievance that ought to have been brought to the notice of the court below. It is apparent that I.A.Nos.944/2016 and 945/2016 and I.A.Nos.777/2016 and 778/2016 are one and the same and no prejudice is caused to the petitioner merely because he was not served with copies in I.A.Nos.944/2016 and 945/2016, as those applications were filed on account of missing of I.A.Nos.777/2016 and 778/2016 from the files. The question therefore, is whether by allowing I.A.Nos.944/2016 and 945/2016, the court below committed any error. It is to be noted that the court below did not fix time for payment of costs. On 3.2.2016, when the matter was taken up before the court below, the petitioner/plaintiff submitted that costs had not been received and therefore, all the applications (I.A.Nos.2324/2015 and 2325/2015) were dismissed. However, the respondent/defendant paid

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CRP 235/2016

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-:5:-

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costs on 12.2.2016 and moved the applications. There is no undue delay on the part of the defendant.

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Considering the facts and circumstances, there is no jurisdictional error committed by the court below. Therefore, declining relief to the petitioner, civil revision petition is dismissed. However, considering the fact that the suit is of the year 2005, the court below shall dispose of the suit as expeditiously as possible, at any rate, before summer vacation.

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Sd/-

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A.MUHAMED MUSTAQUE, JUDGE

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Dr.Joy P Chungath v. M/S. Godrej Boyce Manufacturing Co.Ltd.

Case brief

What is this about?

What did the court decide?

Dr.Joy P Chungath v. M/S. Godrej Boyce Manufacturing Co.Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

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