The Kerala High Court dismissed an appeal against an order that rejected applications to set aside a default dismissal of a suit and an ex parte decree in a counter-claim. The court held the appellant's explanation for delay and non-appearance was not credible.
The appeal prayers to set aside the ex parte decree and dismiss the suit for default were dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
& THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
WEDNESDAY, THE 8TH DAY OF NOVEMBER 2017/17TH KARTHIKA, 1939
FAO.No. 114 of 2015 ()
[AGAINST THE COMMON ORDER DATED 10.12.2014 IN I.A.NOS. 2942, 2943, 2944 AND 2945 OF 2014 IN O.S. NO.20/2008 OF DISTRICT COURT, ERNAKULAM)
APPELLANT/ PLAINTIFF :
DR.WILSON PAUL, S/O. PAULOSE, PROPRIETOR, PARUTHUVAYALIL PHARMA PRODUCTS, KEEZHILLAM, ERNAKULAM DISTRICT - 683 514
BY ADVS.SRI.DINESH R.SHENOY SMT.K.K.JYOTHILAKSHMY SRI.SANIL JOSE SMT.S.SOUMYA ISSAC
RESPONDENTS :
1. DR.P.P.PATHROSE, S/O. PAULOSE, PARUTHUVAYALIL HOSPITAL P.O., KEEZHILLOM, ERNAKULAM - 683 541
2. PARUTHUVAYALIL HOSPITAL, KEEZHILLAM,, REP. BY ITS MANAGING PARTNER, DR. P.P. PATHROSE, S/O. PAULOSE, PARUTHUVAYALIL HOSPITAL P.O., KEEZHILLOM, ERNAKULAM - 683 541
3. M/S. PAMLABS HEALTH CARE PVT. LTD., PARUTHUVAYALIL HOSPITAL COMPLEX, KEEZHILLAM, REP. BY ITS MANAGING DIRECTOR, DR. P.P. PATHROSE, S/O. PAULOSE, PARUTHUVAYALIL HOSPITAL P.O., KEEZHILLOM, ERNAKULAM - 683 541. 4. M/S. ORTHO CARE PRODUCTS PVT. LTD., INDUSTRIAL ESTATE, KALAMASSERY, REP. BY ITS MANAGING DIRECTOR, P.P.PATHROSE, S/O. PAULOSE, PARUTHUVAYALIL HOSPITAL P.O., KEEZHILLOM, ERNAKULAM - 683 541. 5. HERBICS INDIA MARKETING PVT. LTD., KEEZHILLAM, REP. BY ITS DIRECTOR, P.P. PATHROSE, S/O. PAULOSE, PARUTHUVAYALIL HOSPITAL P.O., KEEZHILLAM, ERNAKULAM - 683 541 R1-R5 BY ADV. SRI.C.HARIKUMAR BY ADV. SRI.VIZZY GEORGE KOKKAT BY ADV. SRI.RENJITH RAJAPPAN BY ADV. SMT.SANU S MALAKEEL
THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 08-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RKM
P.N. RAVINDRAN & DEVAN RAMACHANDRAN, JJ
JUDGMENT
P.N. RAVINDRAN, J.
This appeal arises from the order passed by the Court of the District Judge of Ernakulam on 10.12.2014 dismissing I.A.Nos.2942, 2943, 2944 and 2945 of 2014 in O.S.No.20 of 2008. The appellant is the applicant in the said applications and the plaintiff in O.S.No.20 of 2008. He had in O.S.No.20 of 2008 prayed for a permanent prohibitory injunction restraining the defendants, their agents and men from using the registered trade name “Paruthuvayalil” and/or the emblem/logo “Paruthuvayalil - Centuries of Trust in Ayurveda” for manufacturing, promoting, marketing and selling of any Ayurvedic goods or formulations anywhere in India. He had also prayed for a decree allowing him to realise the sum of Rs.50,000/from the defendants and their assets.
F.A.O. No.114 of 2015 -2-
was dismissed for default and the counter claim was decreed ex parte.
F.A.O. No.114 of 2015 -3-
know about it only when he received notice in E.P.No.439 of 2013 filed by the first defendant.
F.A.O. No.114 of 2015
-4-
parte decree passed in the counter claim only when he received notice on 6.11.2013 in E.P.No.439 of 2013 filed by the first defendant to execute the decree passed in the counter claim.
F.A.O. No.114 of 2015 -5-
it was contended before us and in the court below also that on account of the attack by the first defendant, the appellant was not in a position to go over to the court, Ext.A3 FIR in Crime No.42 of 2012 of Kuruppumpady Police Station discloses that the alleged attack was on 10.11.2012. The suit was dismissed for default and an ex pate decree was passed in the counter claim on 29.9.2011, three months prior to the alleged attack. If that be so, the alleged attack also cannot be taken as a reason for the non appearance of the plaintiff. Apart from the ipse dixit of the appellant, there is nothing on record to show that he had undergone treatment for depression and tension. In such circumstances, the court below was in our opinion perfectly justified in dismissing the applications.
We accordingly hold that there is no merit in the instant appeal. The appeal fails and is dismissed.
Sd/-
P.N. RAVINDRAN, JUDGE
sd/-
DEVAN RAMACHANDRAN, JUDGE
kp
2 issues framed by the court
Whether the condonation of delay for filing applications under Order 9 Rules 9 and 13 CPC and Section 5 of the Limitation Act is warranted considering the appellant's explanation regarding mental tens
Whether the explanation regarding impersonation of counsel necessitated a period of seven months before filing applications to set aside the default order and ex parte decree.
3 provisions across 2 enactments
DR.WILSON PAUL
DR.P.P.PATHROSE
PARUTHUVAYALIL HOSPITAL
M/S. PAMLABS HEALTH CARE PVT. LTD.
M/S. ORTHO CARE PRODUCTS PVT. LTD.
HERBICS INDIA MARKETING PVT. LTD.
P.N.RAVINDRAN
DEVAN RAMACHANDRAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
