Disposed

Thomas P.P v. Joy Thomas

Kerala HC6 Feb 2020OP(C)/94/2020

Case brief

AI extract

What is this about?

The High Court held the Rs.15,000/- costs imposed by the District Court for restoring a default-dismissed application were not excessive. The Court ordered restoration of the suit to file and directed the trial court to adjudicate the boundary dispute within two months.

What did the court decide?

Restoration of the suit O.S.No.1052/2009 upon payment of Rs.15,000/- costs; direction to trial court to decide the suit within two months.

Thomas P.P Vs Joy Thomas — Property and Title | Kerala HC (2020)

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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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THURSDAY, THE 06TH DAY OF FEBRUARY 2020 / 17TH MAGHA, 1947

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OP(C).No.94 OF 2020

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AGAINST THE ORDER/JUDGMENT IN OS.NO.1052/2009 OF THE MUNSIFF'S COURT, ERNAKULAM

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CMA NO.30/2018 OF THE ADDL.DISTRICT COURT-V, ERNAKULAM

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PETITIONER (APPELLANT IN CMA):

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THOMAS P.P AGED 71 YEARS S/O PAILY PUTHANCHAKKALAKKAL HOUSE, MALIAKAL ROAD, THEVARA, KOCHI-682 013, ELAMKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.

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BY THOMAS P.P(PARTY IN PERSON)

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RESPONDENT (RESPONDENT IN A.S.):

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JOY THOMAS AGED 58 YEARS S/O THOMAS, KANAT PUTHANVEETTIL HOUSE, THEVARA, KOCHI-682 013, ELAMKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.

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R1 BY ADV. SHRI.A.B.M.HAMDULLAH SAYEED R1 BY ADV. SRI.P.M.MOHAMMED SHIRAZ

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 06.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No.94 OF 2020

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JUDGMENT

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The suit O.S.No.1052/2009, filed by the petitioner

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herein as plaintiff, for fixation of boundary and injunction both prohibitory and mandatory, was dismissed for default.

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The application filed by the petitioner as I.A.1556 of 2015 under Order IX Rule 9 CPC seeking restoration of the suit was also dismissed for default. The application filed by the petitioner as I.A.No.5555/2015 to get I.A.No.1556/2015 restored back to file was also dismissed on failure to take steps. Seeking to set aside that dismissal and to restore that application, the petitioner filed I.A 2525 of 2016. It was dismissed by the trial court. The said order was challenged by the petitioner before the District Court as C.M.A.No.30/2018. The learned District Judge was pleased to allow I.A.No.2525/2016 and to restore I.A.No.5555/2015 on condition that the petitioner pays an amount of Rs.15,000/- as costs to the respondent. The part of the order in so far as it

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OP(C).No.94 OF 2020

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imposed cost of Rs.15,000/- is under challenge in this original petition on the ground that it is excessive.

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In view of the proceedings that has taken

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place in the suit as referred to above, I do not think

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that the costs imposed can be said to be excessive.

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The suit is of the year 2009. The suit is ripe for trial. It is trite that the endeavour of the courts must be to decide lis on merits rather than on default. Keeping in mind the above, and to avoid further procedural delays, I direct that, on payment of the costs of Rs.15,000/- as ordered by the learned District Judge within a period of one month from today, the suit O.S.No.1052/2009 will stand restored to file. On such restoration, the learned Munsiff shall try and dispose of the suit, as expeditiously as possible and at any rate, within a period of two months thereafter. The costs as ordered shall be paid to the counsel appearing for the respondent before this Court within the period mentioned above and a memo filed before this Court evidencing such payment.

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OP(C).No.94 OF 2020

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Original Petition is disposed of as above. Parties

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to appear before the I Addl. Munsiff's Court, Ernakulam

on 16.03.2020.

Sd/-

SATHISH NINAN

JUDGE

rsr

OP(C).No.94 OF 2020

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF PLAINT DATED 16.10.2009 IN OS NO 1052/2009 BEFORE MUNSIFF COURT, ERNAKULAM

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EXHIBIT P2 TRUE COPY OF IA NO 2525/2016 DATED 16.3.2016 FILED BEFORE 1ST ADDL MUNSIFF COURT, ERNAKULAM

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EXHIBIT P3 TRUE COPY OF ORDER DATED 23.2.2018 IN IA NO 2525/2016 OF 1ST ADDL MUNSIFF, COURT ERNAKULAM

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EXHIBIT P4 TRUE COPY OF MEMORANDUM OF APPEAL DATED 21.5.2018 IN C.M.A NO 30/2018 BEFORE THE COURT OF ADDL DISTRICT JUDGE-V ERNAKULAM

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EXHIBIT P5 TRUE COPY OF JUDGMENT DATED 19.11.2019 F ADDL DISTRICT COURT-V ERNAKULAM IN CMA NO 30/2018

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RESPONDENT'S/S EXHIBITS:

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EXHIBIT-R1(A) TRUE PHOTOCOPY OF THE LETTER DATED 21/03/2018 OF THE DISTRICT COLLECTOR EXHIBIT-R1(B) TRUE PHOTOCOPY OF THE COMPLAINT DATED 23/11/2018 SUBMITTED BY THE PETITIONER EXHIBIT-R1(C) TRUE PHOTOCOPY OF THE ORDER DATED 18/03/2019 OF THE DISTRICT COLLECTOR

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EXHIBIT-R1(D) TRUE PHOTOCOPY OF THE NOTICE DATED 04/07/2019 OF EXECUTIVE ENGINEER, KOCHI MUNICIPAL CORPORATION

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EXHIBIT-R1(E) TRUE PHOTOCOPY OF REPLY DATED 07/2019

Thomas P.P v. Joy Thomas

Case brief

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What did the court decide?

Thomas P.P v. Joy Thomas

Case brief

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