The High Court of Kerala disposed of an appeal and a petition for judicial review. The appeal against the dismissal of a restoration application was dismissed for non-prosecution. The petition for restoration of an application to amend the plaint was also dismissed for non-prosecution.
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 ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
TUESDAY, THE 1ST DAY OF AUGUST 2023 / 10TH SRAVANA, 1945
F.A.O.NO.110OF 2014
AGAINST THE ORDER DATED 13.01.2014 IN I.A.NO.1160 OF 2013 IN
O.S.NO. 37 OF 2008 ON THE FILE OF THE SUBORDINATE JUDGE’S
COURT, HOSDRUG
APPELLANT/PLAINTIFF:
N.K. HAMEED,
SON OF KAMMAD, RESIDING AT KARIKKOD, KAMBLAKAD
POST, KANIYAMPATTA VILLAGE, VYTHIRI TALUK, WAYANAD
DISTRICT NOW RESIDING AT THEKKEPURAM, NEAR IQBAL
GATE, AJANOOR VILLAGE, HOSDURG TALUK, MANIKOTH
POST KASARGOD DISTRICT.
BY ADVS.
SRI.M.GOPIKRISHNAN NAMBIAR
SRI.P.BENNY THOMAS
SRI.K.JOHN MATHAI
RESPONDENTS/DEFENDANTS:
1 SATHEESH SHENOY,
SON OF RAMACHANDRA SHENOY, RESIDING AT MANALIL
AJANUR VILLAGE, HOSDURG TALUK, P.O. AJANUR,
KASARAGOD DISTRICT - 671 531.
2 VINAYAKA SHENOY,
SON OF RAMACHANDRA SHENOY, RESIDING AT MANALIL,
AJANUR VILLAGE, HOSDURG TALUK, P.O. AJANUR,
KASARAGOD DISTRICT - 671 531.
3 VIJAYA BANK, KANHANGAD BRANCH, REPRESENTED BY ITS MANAGER, PIN670315
4 CANARA BANK, KANHANGAD BRANCH, REPRESENTED BY ITS SENIOR
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F.A.O.No.110 of 2014 & O.P.(C)No.1186 of 2014
MANAGER, PIN - 670315
5 THE VIJAYA BANK,
REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR
HAVING ITS HEAD OFFICE AT 41/12, HEAD OFFICE
BUILDING, TRINITY CIRCLE, MAHATMA GANDHI ROAD,
BANGALORE-560 001.
6 THE AUTHORISED OFFICER,
THE SECURITISATION AND RECONSTRUCTION OF FINANCIAL
ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT
(SARFAESI), VIJAYA BANK, REGIONAL OFFICE
MANGALORE-575 001
BY ADVS.
SRI.K.ANAND (SR.) R3
SMT.LATHA KRISHNAN R3
SMT.LATHA ANAND R5
THIS F.A.O. HAVING COME UP FOR ADMISSION ON 01.08.2023,
ALONG WITH OP(C).1186/2014, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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F.A.O.No.110 of 2014 & O.P.(C)No.1186 of 2014
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
TUESDAY, THE 1ST DAY OF AUGUST 2023 / 10TH SRAVANA, 1945
O.P.(C)NO.1186OF 2014
AGAINST THE ORDER DATED 05.09.2013 IN I.A.NO.1050 OF 2013 IN
O.S.NO. 37 OF 2008 ON THE FILE OF THE SUBORDINATE JUDGE’S
COURT, HOSDRUG
PETITIONER:
N.K.HAMEED,
S/O KAMMAD, RESIDING AT KARIKKOD, KAMBLAKAD POST,
KANIYAMPATTA VILLAGE, VYTHIRI TALUK, WAYANAD
DISTRICT, NOW RESIDING AT THEKKEPURAM, NEAR IQBAL
GATE, AJANOOR VILLAGE, HOSDURG TALUK, MANIKOTH
POST, KASARGOD DISTRICT.
BY ADV SRI.M.GOPIKRISHNAN NAMBIAR
RESPONDENTS:
1 SATHEESH SHENOY,
S/O RAMACHANDRA SHENOY, RESIDING AT MANALIL,
AJANUR VILLAGE, HOSDRUG TALUK, P.O. AJANUR,
KASARAGOD DISTRICT-671531.
2 VINAYAKA SHENOY,
S/O RAMACHANDRA SHENOY, RESIDING AT MANALIL,
AJANUR VILLAGE, HOSDRUG TALUK, P.O. AJANUR,
KASARAGOD DISTRICT-671531.
3 VIJAYA BANK,
KANHANGAD BRANCH, REPRESENTED BY ITS MANAGER,
PIN:670 315.
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F.A.O.No.110 of 2014 & O.P.(C)No.1186 of 2014
4 CANARA BANK, KANHANGAD BRANCH, REPRESENTED BY ITS SENIOR MANAGER-670 315.
5 THE VIJAYA BANK,
REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR
HAVING ITS HEAD OFFICE AT 41/12, HEAD OFFICE
BUILDING, TRINITY CIRCLE, MAHATMA GANDHI ROAD,
BANGALORE-560 001.
6 THE AUTHORISED OFFICER,
THE SECURITISATION AND RECONSTRUCTION OF FINANCIAL
ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT
(SARFAESI), VIJAYA BANK, REGIONAL OFFICE,
MANGALORE-575 001.
BY ADVS.
SRI.K.ANAND (SR.)
SRI.PAULY MATHEW MURICKEN,SC,CANARA BAN
LATHA ANAND(K/247/1990) (B/O)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
01.08.2023, ALONG WITH FAO.110/2014, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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F.A.O.No.110 of 2014 & O.P.(C)No.1186 of 2014
JUDGMENT
Anil K. Narendran, J.
F.A.O.No.110 of 2014:- The appellant filed O.S.No.37 of 2008 before the Sub Court, Hosdurg against the respondents hereindefendants for realisation of an amount of Rs.17,50,000/- paid towards advance sale consideration under an agreement for sale of the plaint schedule property, entered into by defendants 1 and 2 in favour of the plaintiff. The suit was dismissed for default on 10.09.2013, as the learned counsel for the plaintiff reported no instructions. The plaintiff filed R.P.I.A.No.1160 of 2013, for restoration, invoking the provisions under Order IX, Rule 9 of the Code of Civil Procedure, 1908. That application ended in dismissal by the order dated 13.01.2014, which is under challenge in this appeal filed under Order XLIII, Rule (1)(c) of the Code of Civil Procedure, 1908.
1.1. On 28.03.2014, when this appeal came up for admission, this Court issued notice to the respondents. Service of notice is not complete on respondents 1 and 2, since notice returned with an endorsement ‘no such addressee’.
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F.A.O.No.110 of 2014 & O.P.(C)No.1186 of 2014
incorporating an additional paragraph and also an additional relief. That application ended in dismissal by Ext.P7 order dated 05.09.2013, which is under challenge in this original petition, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India.
2.1. On 27.05.2014, when this matter came up for admission,
this Court admitted the matter on file and issued notice to the respondents. The original petition was ordered to be listed along with F.A.O.No.110 of 2014.
Recording the aforesaid submission made by the learned
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F.A.O.No.110 of 2014 & O.P.(C)No.1186 of 2014
counsel for the appellant/petitioner, the appeal and the original petition are dismissed for non-prosecution.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
MIN
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F.A.O.No.110 of 2014 & O.P.(C)No.1186 of 2014
APPENDIX OF OP(C) 1186/2014
PETITIONER EXHIBITS
EXHIBIT P1: TRUE COPY OF THE PLAINT IN
O.S.NO.37 OF 2008, ON THE FILES OF THE
SUBORDINATE JUDGE'S COURT, HOSDURG DATED
2.4.2008.
EXHIBIT P2: TRUE COPY OF THE WRITTEN
STATEMENT FILED BY THE 3RD DEFENDANT DATED
4.10.2008 IN O.S.NO.37 OF 2008, ON THE FILES
OF THE SUBORDINATE JUDGE'S COURT, HOSDURG.
EXHIBIT P3: TRUE COPY OF THE ADDITIONAL
WRITTEN STATEMENT FILED BY THE 3RD DEFENDANT
DATED 16.3.2013 IN O.S.NO.37 OF 2008, ON THE
FILES OF THE SUBORDINATE JUDGE'S COURT,
HOSDURG.
EXHIBIT P4: TRUE COPY OF THE IA NO.1050/2013
DATED 1.9.2013 FILED BY THE PETITIONER IN
O.S.NO.37 OF 2008, ON THE FILES OF THE
SUBORDINATE JUDGE'S COURT, HOSDURG.
EXHIBIT P5: TRUE COPY OF THE COUNTER
AFFIDAVIT FILED IN IA NO.1050/2013 DATED
3.9.2013 FILED BY THE 3RD DEFENDANT.
EXHIBIT P6: TRUE COPY OF THE COUNTER
AFFIDAVIT FILED IN IA NO.1050/2013 DATED
4.9.2013 FILED BY THE DEFENDANTS 4 AND 6
EXHIBHIT P7: TRUE COPY OF THE ORDER DATED
5.9.2013 IN IA NO.1050/2013 IN
O.S.NO.37/2008 ON THE FILE OF THE COURT OF
THE SUBORDINATE JUDGE, HOSDRUG.
2 issues framed by the court
Whether to allow the appeal against the dismissal of a plaint restoration application filed under Order IX, Rule 9 CPC.
Whether to allow the original petition seeking restoration of a suit application for amendment of plaint under Article 227.
3 provisions across 2 enactments
N.K. HAMEED
N.K. HAMEED
SATHEESH SHENOY
VINAYAKA SHENOY
VIJAYA BANK
CANARA BANK
ANIL K. NARENDTRAN
P.G. AJITHKUMAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court