Disposed

Sudarsanan v. Radha

Kerala HC5 Jan 2017OP(C)/3060/2013

Case brief

AI extract

What is this about?

This court disposed of the original petition challenging an order dismissing a restoration application filed under Section 151 CPC. The court held that Order IX Rule 9 CPC was the relevant provision. To serve justice given the short delay, the respondent was directed to pay a cost of ₹2,000 to the plaintiff.

What did the court decide?

Petitioner's original petition is disposed of. 2nd respondent directed to pay ₹2,000 to plaintiff within one month; failure to pay will lead to dismissal of application to set aside ex parte decree.

Sudarsanan Vs Radha — Partition | 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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THURSDAY, THE 5TH DAY OF JANUARY 2017/15TH POUSHA, 1938

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OP(C).No. 3060 of 2013 (O)

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OS 758/2007 OF ADDL. MUNSIFF COURT, CHERTHALA

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PETITIONER(S):

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SUDARSANAN,

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S/O.VISWANATHAN, SREEJITH BHAVAN, FROM KOOTHANJILICKAL, KOKKOTHAMANGALAM VILAGE, CHERTHALA SOUTH MURI, ALAPPUZHA - 688 539.

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BY ADVS.SRI.G.P.SHINOD

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SRI.RAM MOHAN G. SRI.MANU V. SRI.GOVIND PADMANAABHAN

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RESPONDENT(S):

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1. RADHA, W/O.VISWANATHAN, KURICKAVELIYIL, CHERTHALA EAST MURI, KOKKOTHAMANGALAM VILLAGE, ALAPPUZHA - 688 539.

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2. GIRIJA,

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W/O.GOVINDANKUTTY, PATTANAKKADU MURI, KOKKOTHAMANGALAM VILLAGE, ALAPPUZHA - 688 539.

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3. SUSEELAN K.V.,

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S/O.VISWANATHAN, THIRUVILAKKU VELIYIL, NORTH OF THIRUVILAKKU TEMPLE, AVALUKUNNU P.O., ARYAD PANCHAYATH WARD NO. 5, ALAPPUZHA - 688 006.

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4. K.V.BABU, S/O.VISWANATHAN, NIKARTHIL, PARAYAKADU P.O., CHERTHALA, ALAPPUZHA - 688 524.

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5. JALAJA, W/O.UDHAYAN, VELIYIL, KADAKKARAPALLY MURI, KADAKKARAPALLY VILLAGE, ALAPPUZHA - 688 524.

msv/

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OP(C).No. 3060 of 2013 (O)

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6. GEETHA, W/O.BABU, ALAPARAMBU, THAICKAL P.O, CHERTHALA, ALAPPUZH - 688 524.

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7. ALAPPUZHA CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK, REPRESENTED BY ITS PRESIDENT, ALAPPUZHA - 688 524.

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R2 BY ADVS. SRI.R.HARIKRISHNAN SRI.R.RAMESH SRI.R.UMASANKAR R3 BY ADV. SMT.P.A.SULEKHA R4 BY ADVS. SRI.DINESH MATHEW J.MURICKEN SRI.ANTONY JOSEPH V. R7 BY ADV. SRI.K.N.VENUGOPALA PANICKER

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 05-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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msv/

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OP(C).No. 3060 of 2013 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1. COPY OF THE IA NO.573 OF 2009 IN OS NO.758 OF 2007 FILED BEFORE THE ADDITIONAL MUNSIFF COURT, CHERTHALA.

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EXHIBIT P2. COPY OF THE IA NO.3070 OF 2010 IN OS NO.758 OF 2007 FILED BEFORE THE ADDITIONAL MUNSIFF COURT, CHERTHALA.

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EXHIBIT P3. COPY OF THE ORDER DATED 07.06.11 PASSED BY THE ADDITIONAL MUNSIFF COURT, CHERTHALA IN IA NO. 3070 OF 2010 IN OS NO.758 OF 2007 FILED BEFORE THE ADDITIONAL MUNSIFF COURT, CHERTHALA.

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EXHIBIT P4. COPY OF THE IA NO.1488 OF 2011 IN IA NO.3070 OF 2010 IN OS NO.758 OF 2007 FILED BEFORE THE ADDITIONAL MUNSIFF COURT, CHERTHALA.

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EXHIBIT P5. COPY OF THE ORDER DATED 11.09.13 IN IA NO.1488 OF 2011 IN OS NO.758 OF 2007 OF THE ADDITIONAL MUNSIFF COURT, CHERTHALA.

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RESPONDENT(S)' EXHIBITS

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EXT.R4(a): TRUE COPY OF IA.NO.3008/2010 IN OS.NO.758/2007 ON THE FILE OF MUNSIFF COURT, CHERTHALA DTD.22.9.2010.

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EXT.R4(b): TRUE COPY OF IA.NO.3009/2010 IN OS.NO.758/2007 ON THE FILE OF MUNSIFF COURT, CHERTHALA DTD.22.9.2010

//TRUE COPY//

P.S.TO JUDGE

msv/

A. MUHAMED MUSTAQUE, J.

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O.P.(C) No. 3060 of 2013

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Dated this the 5^th day of January, 2017

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J U D G M E N T

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1.This original petition is filed by the plaintiff in a suit for partition and injunction.

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2.In the above suit, an ex parte decree was passed on 12.01.2009. Thereafter, an application for setting aside the ex parte decree was filed by the 2^nd defendant (the 2^nd respondent herein) as IA No.573/2009, which was posted for evidence on 10.06.2010. Since none appeared on that day, the case was adjourned to 17.06.2010. However, on 17.06.2010 also, there was no appearance and accordingly, the application was dismissed for default. The 2^nd defendant, thereafter, filed IA No.3070/2010 on 24.09.2010 to restore IA No.573/2009. This was filed under Section 151 of the Code of Civil Procedure. The court below allowed the said application by Ext.P3. The plaintiff, aggrieved by Ext.P3 order, filed a review, stating that there is error apparent on the face

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..2..

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O.P.(C) No. 3060 of 2013

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of record in exercising jurisdiction as the court below could not have exercised its power under Section 151 of the CPC. This was dismissed by Ext.P5 order. It is challenging this order, the petitioner has come up before this Court.

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3.Heard the learned counsel for the petitioner and the learned counsel for the 2^nd respondent.

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4.Crux of the issue is based on an error on the procedure

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adopted by the court below for restoring the application to set aside the ex parte decree. As rightly pointed out by

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the learned counsel for the petitioner/plaintiff, the court below could not have invoked Section 151 of the CPC when it has ample power under Order IX Rule 9 r/w Section 141 of CPC to restore the application on file. This assumes so much significance in the matter, especially, when an application is filed under Section 151 of CPC after expiry of the period of limitation. The application was dismissed on 17.06.2010 and the restoration application was filed on 24.09.2010, which appears to have been filed to get over the period of

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..3..

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O.P.(C) No. 3060 of 2013

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limitation. When there is a specific provision provided to prescribe limitation and to get over such period of limitation, one cannot resort to Section 151 of CPC.

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5.However, remanding the matter back to the court below with permission to the 2^nd defendant to file a fresh application would be a futile exercise considering the facts and circumstances of the case. It is to be noted that the delay involved in the matter is only about 60 days.

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6.In such circumstances, this Court is of the view that interest of justice would be sub-served if the 2^nd respondent/2^nd defendant is directed to pay a cost of ₹ 2,000/- (Rupees two thousand only) to the plaintiff. Cost shall be paid through the learned counsel appearing in this Court within a period of one month. It is made clear that in the event of the 2^nd defendant fails to pay cost as above, the application to set aside the ex parte decree shall stand dismissed.

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7.The original petition is disposed of, as above.

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Sd/-

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A. MUHAMED MUSTAQUE JUDGE

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bka/-

Sudarsanan v. Radha

Case brief

What is this about?

What did the court decide?

Sudarsanan v. Radha

Case brief

What is this about?

What did the court decide?

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