The High Court allowed the appeal and scaled down the costs imposed by the court below from Rs.7,500 to Rs.2,500, finding the original amount onerous given the counsel's accident. Set aside the dismissal order and the high cost order.
Costs reduced to Rs.2,500; order of dismissal and high costs vacated; ex parte decree set aside upon payment.
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
FRIDAY, THE 17TH DAY OF NOVEMBER 2017/26TH KARTHIKA, 1939
FAO.No. 179 of 2017 ()
AGAINST THE ORDER IN IA.NO.1574/2016 IN O.S.NO.40/2011 OF ADDITIONAL SUB COURT,NORTH PARAVUR,DATED 07.3.2017.
APPELLANT(S)/PETITIONERS/DEFENDANTS :
1. NARAYANA DAS, S/O. RAMACHANDRAN ACHARY, CHERIVUPARAMBIL HOUSE, PICHAMPILLY, P. ND BHAVAN, ALWAYE, ERNAKULAM DISTRICT.
2. NEELA DAS, W/O. NARAYANA DAS, CHERIVUPARAMBIL HOUSE, PICHAMPILLY, P. ND BHAVAN, ALWAYE, ERNAKULAM DISTRICT.
BY ADVS.SRI.SANTHOSH P.PODUVAL SMT.RASHIDA CHEMMENAMPALLY SMT.R.RAJITHA
RESPONDENT(S)/RESPONDENT/PLAINTIFF :
----------------------------------------------------------------
V.U. PRAKASAN, S/O. UNNI, RESIDING AT VALIYAPARAMBIL HOUE, VATTEKKUNNAM KARA, THRIKKAKARA NORTH VILLAGE, EDAPPALLY, ERNAKULAM, KOCHI-682024.
BY SRI.PEEYUS A.KOTTAM
THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 17-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
TS
P.N. RAVINDRAN & DEVAN RAMACHANDRAN, JJ
F.A.O. No. 179 of 2017
JUDGMENT
DEVAN RAMACHANDRAN, J.
This appeal is preferred against the order of the Additional Sub Judge, North Paravur in I.A.No.1574 of 2016 in O.S.No.40 of 2011 as per which the said court was pleased to set aside an ex parte decree by imposing a condition that the appellants pay a sum of Rs.7,500/- as costs within a period of 15 days from the date of the order. Since the appellants did not make payment of the amount ordered as costs, the court below, by a subsequent order passed on 7.3.2017, dismissed the aforementioned I.A.No.1574 of 2016 for non compliance of the direction to pay costs. This appeal has been filed primarily impugning the imposition of costs of Rs.7,500/- and the consequential dismissal of the application for failure in payment of the said amount.
F.A.O. No.179 of 2017 -2-
for the party before the court below, wherein she had averred that she met with an accident and was, therefore, incapacitated from appearing before the court below on the day the suit was decreed, namely, on 12.7.2016. He asserts that since the affidavit had shown sufficient cause for non appearance, the court below ought to have allowed it without imposition of costs.
F.A.O. No.179 of 2017 -3-
parte decree before the court below.
In such circumstances, we deem it appropriate to allow this appeal and to scale down the costs imposed by the court below in I.A.No.1574 of 2016 in O.S.No.40 of 2011 and to reduce it from Rs.7,500/- to Rs.2,500/-. We order so. This amount shall be paid by the appellants to the respondent within a period of two weeks from the
F.A.O. No.179 of 2017 -4-
date of receipt of a copy of this judgment. On such payment, the order of the court below in I.A.No.1574 of 2016 dated 7.3.2017 would stand vacated and the ex parte decree dated 12.7.2016 would also stand set aside. The court below would thereafter be required to consider the suit on its merits and to take it to file and make an attempt to dispose it of, as expeditiously as possible, but not later than the last working day of February, 2018. It goes without saying that if the appellants fail or commit default in payment of the costs ordered herein within the time granted by us, the benefit of this judgment would not be available to him and it will stand automatically vacated.
The appeal is thus ordered.
Sd/-
P.N. RAVINDRAN, JUDGE
sd/-
DEVAN RAMACHANDRAN, JUDGE
kp
3 issues framed by the court
Whether the High Court had the power to reduce the costs imposed by the court below for failure to appear ex parte.
Whether the appellants were negligent in prosecuting the proceedings despite their counsel's affidavit stating an accident.
Whether the ex parte decree should be set aside upon payment of reduced costs.
NARAYANA DAS
NEELA DAS
V.U. PRAKASAN
P.N. RAVINDRAN
DEVAN RAMACHANDRAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
