Remanded
Lissy Jose v. Ushakumari
Kerala HCOP(C)/1720/2017
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from the order text
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HIGH COURT OF KERALA AT ERNAKULAM PRESENT:…
What the court decided
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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
THE HONOURABLE MR. JUSTICE SATHISH NINAN
THURSDAY, THE 5TH DAY OF JULY 2018 / 14TH ASHADHA, 1940
OP(C).No. 1720 of 2017
OS. NO. 39/2009 OF MUNSIFF COURT, KOTTARAKKARA
PETITIONERS/PLAINTIFFS
D/O.KUTTYAMMA,AGED 69 YEARS,RESIDING AT MANNOORAZHIKADATHU VEEDU,KARICKAL MURI, KARIMPINPUZHA,PO,PUTHUR VILLAGE,KOTTARAKKARA TALUK.
OP(C).No. 1720 of 2017
8 MAHILAMANI, AGED 75 YEARS,RESIDING AT SANTHOSH BHAVAN, KARICKAL MURI,KARIMPINPUZHA,PO,PUTHUR VILLAGE,KOTTARAKKARA TALUK.
BY ADVS.SRI.SURESH KUMAR KODOTH SRI.K.P.ANTONY BINU
RESPONDENTS/PLAINTIFF:
1. USHAKUMARI @ SAKUNTHALA,
2. RAMESHAN,
3. RAJENDRAN,
4. PAVITHRASWARAM GRAMA PANCHAYATH, REPRESENTED BY THE SECRETARY GRAMA PANCHAYATH
5. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, KOLLAM.
6. TAHASILDAR, TALUK OFFICE,KOTTARAKKARA.
R1 BY ADVS. SRI.M.V.THAMBAN SRI.R.REJI SMT.THARA THAMBAN SRI.B.BIPIN SRI.ARUN BOSE R4 BY ADV. SRI.K.V.ANIL KUMAR R5 BY GOVERNMENT PLEADER SMT. PRIYA SHANAVAS
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 05-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
sdr/-
OP(C).No. 1720 of 2017 (O)
APPENDIX
PETITIONER(S)' EXHIBITS
EXT.P1 TRUE COPY OF JUDGMENT DATED 21.12.2013 IN THE NO.39/2009 OF THE MUNSIFFS COURT,KOTTARAKKARA. EXT.P2 TRUE COPY OF ORDER DATED 07.03.2017 IN I.A.58/2017 AND I.A.61/2017 EXT.P3 TRUE COPY OF ORDER DATED 07.03.2017 IN I.A.59/2017 AND I.A.60/2017.
RESPONDENTS EXHIBITS NIL /TRUE COPY/ PA TO JUDGE sdr/7.7.18
SATHISH NINAN, J.
= = = = = = = = = = = = = = = = = = O. P. (C) No.1720 of 2017 = = = = = = = = = = = = = = = = = = Dated this the 5th day of July, 2018
J U D G M E N T
The petitioners are the plaintiffs in a suit for prohibitory and mandatory injunction. The dispute in the suit centers around a pathway. The first defendant raised a counter claim. The fourth defendant remained ex parte in the suit. The suit went for trial. The suit was decreed and the counter claim was dismissed. Thereafter, the fourth defendant filed an application to set aside the ex parte decree and for condoning the delay of 1050 days in filing the application. She also sought for restoration of the counter claim filed by the first defendant. The court below as per the impugned order allowed the application, set aside the ex parte decree and restored the counter claim.
O. P. (C) No.1720 of 2017
:- 2 :-
the first defendant. Defendants 1 and 2 had contested the suit. The alleged illness put forward by the fourth defendant as a ground for not having prosecuted the suit, as is revealed by the medical records, was during the period 2016-17. Added to all this, the fact remains that the counter claim which is now restored as per the impugned order was raised by the first defendant as against the plaintiff. The counter claim was dismissed after full-fledged trial and has ended in a decree. As per the impugned order, the said counter claim has been “restored”. Obviously, there has been non consideration of the relevant aspects and an erroneous exercise of jurisdiction by the court below.
O. P. (C) No.1720 of 2017
:- 3 :-
The original petition is disposed of
accordingly.
Sd/- SATHISH NINAN JUDGE
kns///True Copy// P.S. to Judge
1 issue framed by the court
Whether the lower court erred in restoring a dismissed counter claim and setting aside an ex parte decree without considering relevance of delay grounds.
LISSY JOSE
SARASAN
SARASAMMA
SAROJINI
K.R.SOMARAJAN
THANKAMMA.N
SATHISH NINAN
As recorded by the court registry
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