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Razia Fazal v. Thomaskutty Epan

Kerala HC13 Jan 2017CRP/412/2016

Case brief

AI extract

What is this about?

The High Court of Kerala set aside the impugned order dismissing the petitioner's application to set aside an ex parte decree. The court held that substantial justice requires the specific performance suit to be contested on merit, noting a 62-day delay and medical evidence supporting the petitioner's claim.

What did the court decide?

The impugned order setting aside the ex parte decree was quashed and the matter remanded to be heard on merits. Petitioner directed to pay Rs. 25,000 costs to respondent's counsel.

Razia Fazal Vs Thomaskutty Epan — Specific Performance | 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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FRIDAY, THE 13TH DAY OF JANUARY 2017/23RD POUSHA, 1938

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CRP.No. 412 of 2016 ()

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----------------------CMA 50/2015 of ADDL. DISTRICT COURT - VII, ERNAKULAM IA NO. 1172/2014 & IA NO. 1173/2014 IN OS 956/2012 of III ADDL.SUB COURT, ERNAKULAM

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REVISION PETITIONER(S)/APPELLANT/PETITIONER/DEFENDANT :

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RAZIA FAZAL, AGED 42 YEARS, W/O. FAZAL, RESIDING AT C.C.NO.XL VII/823(CI), PLOT NO.2, KEERTHI NAGAR, ELAMAKKARA P.O., PIN-682 026, EDAPPALLY SOUTH VILLAGE, KANAYANNUR TALUK, ERNAKULAM.

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BY ADVS.SRI.A.BALAGOPALAN SRI.A.RAJAGOPALAN SRI.M.N.MANMADAN SMT.P.SEENA

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RESPONDENT(S)/RESPONDENT/RESPONDENT/PLAINTIFF :

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THOMASKUTTY EPAN, AGED 57 YEARS, S/O. EPAN, RESIDING AT KOCHUPURACK HOUSE, ATHRAMPUZHA P.O., ATHRAMPUZHA VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT.

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BY SRI.S.SREEKUMAR SENIOR ADVOCATE BY ADV. SRI.P.MARTIN JOSE BY ADV. SRI.P.PRIJITH BY ADV. SRI.THOMAS P.KURUVILLA

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13-01-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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A.MUHAMED MUSTAQUE, J.

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

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C.R.P.No.412/2016

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Dated this the 13^th day of January, 2017

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The petitioner is the defendant in O.S.No.956 of 2012 on

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the file of the court of the Additional District Judge-VII, Ernakulam. She had filed an application to set aside the ex parte decree along with an application to condone the delay, which were dismissed. Challenging the said orders, she filed an appeal. The appeal also was dismissed. The delay in filing the application to set aside the ex parte decree was only 62 days.

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The defendant’s case is that she was laid up

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with jaundice and was undergoing treatment. The court below in fact adverted to the merit of the case and found that the petitioner’s application was filed to protract the proceedings and it is to be dismissed. The suit was, in fact, for a specific performance. Certainly, this court is of the view that substantial justice demand that it should be contested on merit, especially, when the delay involved is only 62 days. The court has to

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 CRP 412/2016

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-:2:-

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liberally consider the application to set aside the ex parte decree. In this case, the petitioner has also produced a medical prescription. In such circumstances, this court is of the view that the impugned order is liable to be set aside. Accordingly, it is set aside. However, on condition that the petitioner shall pay costs of Rs.25,000/- (Rupees twenty-five thousand only) to the counsel appearing for the respondent before this court within one month. The civil revision petition is disposed of as above.

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Sd/-

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A.MUHAMED MUSTAQUE, JUDGE

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Razia Fazal v. Thomaskutty Epan

Case brief

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Razia Fazal v. Thomaskutty Epan

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