Dismissed

Rooban.K.C (Ruban K.C) v. Jude Thadevus

Kerala HC2 Aug 2019FAO/131/2019

Case brief

AI extract

What is this about?

Appeal filed by defendant against dismissal of application to set aside ex parte decree. Court upheld lower court finding that summons and notices were properly served and defendant was aware of proceedings based on evidence and materials on record.

What did the court decide?

Application to set aside the ex parte decree was dismissed by lower court; appeal against this order is also dismissed.

Rooban.K.C (Ruban K.C) Vs Jude Thadevus — Specific Performance | Kerala HC (2019)

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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 SATHISH NINAN

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FRIDAY, THE 2ND DAY OF AUGUST 2019 / 11TH SRAVANA, 1941

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FAO.No.131 of 2019

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AGAINST THE ORDER IN IA 3026/18 IN OS 994/2011 DT. 20.06.19 OF III ADDITIONAL SUB COURT, ERNAKULAM

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APPELLANT/PETITIONER/DEFENDANT:

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ROOBAN.K.C (RUBAN K.C.), AGED 48 YEARS, S/O CHACKO, KIZHIPPILLIL HOUSE, KAKKANAD P.O., KANAYANNUR TALUK, ERNAKULAM.

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BY ADVS. SRI.K.C.CHARLES SMT.A.T.RENJU SRI.VIMAL K.CHARLES

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RESPONDENT/RESPONDENT/PLAINTIFF:

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JUDE THADEVUS, AGED 51 YEARS, S/O T.R.THOMAS, RESIDING AT THACHUTHARA HOUSE, VADUTHALA DESOM, CHERANELLOOR VILLAGE, KANAYANNUR TALUK, KOCHI-23.

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THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 02.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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SATHISH NINAN, J.

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= = = = = = = = = = = = = = = = = = FAO No.131 of 2019

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= = = = = = = = = = = = = = = = = = Dated this the 2^nd day of August, 2019

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J U D G M E N T

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Having failed in its attempt before the trial court to have the ex parte decree set aside, the defendant is in appeal.

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The suit is one for specific performance of an agreement for sale. The suit was filed on 01.12.2011 and was decreed ex parte on 09.03.12. The application seeking to set aside the ex parte decree was filed in August, 2018. According to the defendant, the summons in the suit was not served on him and there is no delay in filing the application since he came to know about the decree only on 08.08.2018.

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The trial court took evidence on the application and found that the defendant was served with summons and notices issued from the court and that he was aware of the proceedings and the decree. Accordingly the application was dismissed.

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Heard learned counsel on either sides.

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FAO No.131 of 2019

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:- 2 :-

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The contention of the defendant-petitionerappellant is that summons was not served on him and he was unaware of the suit and decree. The trial court noticed that, the summons in the suit was properly addressed and that the defendant does not have a case that the address shown in the suit is not that of his. The trial court noticed that the summons was served in the address as given in the plaint. Ext.B5 is the certified copy of the order of interim injunction passed in the suit, which was served on the defendant. Exts.B6 to B8 are notices issued in the suit on various interlocutory applications. The said Exhibits show service of notices. Exts.B9 and B10 are the certified copies of the show-cause notices and delivery warrant in the execution proceedings which also are acknowledged.

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The defendant disputes his signature on the notices. The process servers who served the aforesaid notices on the defendant were examined as RWs.3 to 7. They all deposed regarding service of respective notices on the defendant.

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FAO No.131 of 2019

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:- 3 :-

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A survey commission was issued in the suit. The commissioner filed Ext.C1 report. In the report, the Commissioner has stated that the defendant refused to accept the notice. He has reported that at the time of inspection on 06.09.14, the plaintiff and the defendant were present in the plaint schedule property. It is further reported that the plaint schedule was shown to by the defendant and he was told by the defendant that, portion of the plaint schedule property which has a total extent of 7.5 cents, have been assigned and the remaining extent is 4.22 cents. Ext.B1 series are the photographs taken at the time of visit by the Commissioner. The photographs are admitted by the defendant and they reveal the presence of the defendant at the time of measurement.

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The learned counsel for the appellant submits that though an application was filed as I.A 4705/2018 seeking to have the signature on the summons forwarded to an expert, the same was dismissed by the court below, which has resulted in

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FAO No.131 of 2019

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:- 4 :-

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failure of justice. On the facts and circumstances as noticed above, I am of the opinion that the court below was right in not granting the prayer.

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It is sufficiently proved that the case set up by the defendant regarding lack of knowledge about the suit and the decree are not correct. The trial court has found that the evidence on record reveal proper service of summons on the defendant also that he was aware about the suit and decree. The finding is based on materials. I concur with the same.

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The order impugned suffers from no illegality. The appeal fails and is dismissed.

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Sd/SATHISH NINAN JUDGE

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kns/-

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//True Copy//

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P.S. to Judge

Rooban.K.C (Ruban K.C) v. Jude Thadevus

Case brief

What is this about?

What did the court decide?

Rooban.K.C (Ruban K.C) v. Jude Thadevus

Case brief

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What did the court decide?

What the court decided

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