Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.BHAVADASAN SATURDAY, THE22D DAY OF NOVEMBER20141ST AGRAHAYANA, 1936 OP(CIVIL).No.1306 of 2013 (O) -------------------------------------- OS NO.532/2005 of I ADDITIONAL SUB COURT,ERNAKULAM. PETITIONER: ------------------- BENZEER,S/O.KUNHU MUHAMMED,AGED56YEARS, PERMANENTLY RESIDING AT CHEENIKKAPURATH THADATHIL, ELAMAKKARA KARA,EDAPALLY SOUTH VILLAGE, KANAYANNUR TALUK. BY ADVS.SRI.C.S.MANU SRI.S.K.PREMRAJ RESPONDENTS: ------------------------ 1. SHINY PAUL,D/O.KURUVILA,AGED39YEARS, PERMANENTLY RESIDING AT THURUTHAMMEL, VADAKKODE KARA,THRIKKAKARA NORTH VILLAGE, KANAYANNUR TALUK,PIN-682021.
2. KURIEN T. KURIEN,S/O.KURIAKOSE,AGED53YEARS, PERMANENTLY RESIDING AT THURUTHAMMEL, VADAKKODE KARA,THRIKKAKARA NORTH VILLAGE, KANAYANNUR TALUK,PIN-682021.
3. PAUL T. KURIEN,S/O.KURIAKOSE,AGED50YEARS, PERMANENTLY RESIDING AT THURUTHAMMEL, VADAKKODE KARA,THRIKKAKARA NORTH VILLAGE, KANAYANNUR TALUK,PIN-682021.
4. BEENA ABRAHAM,W/O.ABRAHAMA T.KURIEN. AGED49YEARS,PERMANENTLY RESIDING AT THURUTHAMMEL, VADAKKODE KARA,THRIKKAKARA NORTH VILLAGE, KANAYANNUR TALUK,PIN-682021.
5. SUSAN ABRAHAM,D/O.ABRAHAM T. KURIEN,AGED28YEARS, PERMANENTLY RESIDING AT THURUTHAMMEL, VADAKKODE KARA,THRIKKAKARA NORTH VILLAGE, KANAYANNUR TALUK,PIN-682021.
6. ELDHO ABRAHAM,S/O.ABRAHAM T. KURIEN, AGED27YEARS,PERMANENTLY RESIDING AT THURUTHAMMEL, VADAKKODE KARA,THRIKKAKARA NORTH VILLAGE, KANAYANNUR TALUK,PIN-682021. Pto ...2... O.P(CIVIL) NO.1306/2013 7. JOHN JOSEPH,S/O.VADASSERY KORA JOSEPH, AGED NOT KNOWN TO THE PETITIONER, PERMANENTLY RESIDING AT471,III MAIN ROAD, KASTHURBA NAGAR,ADAYAR,CHENNAI - 600 020, TAMIL NADU STATE.
8. SHANTHI JOHN,W/O.JOHN JOSEPH, AGE NOT KNOWN TO THE PETITIONER, PERMANENTLY RESIDING AT471, III MAIN ROAD,KASTHURBA NAGAR,ADAYAR, CHENNAI - 600 020,TAMIL NADU STATE. R1 TO R6 BY ADVS.SRI.SIBY MATHEW SRI.B.PREMNATH R7 BY ADVS SRI.SHAJI P.CHALY SRI.R.SANJITH THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON2211-2014, ALONG WITH OP(CIVIL) 1307/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: pk OP(C).No.1306 of 2013 (O) ------------------------------------- APPENDIX PETITIONERS EXHIBITS: ----------------------------------- EXHIBIT-P1:TRUE COPY OF THE AMENDED PLAINT IN O.S.532/2005 ON FILES OF THE HONOURBLE I ADDL. SUB COURT,ERNAKULAM. EXHIBIT-P2(a):TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANT NOS.1 - 6 IN O.S5322005 ON THE FILES OF HONOURABLE I ADDL. SUB COURT, ERNAKULAM. EXHIBIT-P2(b):TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANT NOS.7 - 8 IN O.S5322005 ON FILES OF THE HONOURABLE I ADDL. SUB COURT, ERNAKULAM. EXHIBIT-P3:TRUE COPY OF THE ORDER
DATED0712/2007 IN T.O.P NO.640/2007 ON FILES OF HONOURBLE DISTRICT COURT, ERNAKULAM. EXHIBIT-P3(a):TRUE COPY OF THE ORER DATED3001/2009 IN I.A23662008 IN O.S5322005 PASSED BY THE SUB COURT, ERNAKULAM. EXHIBIT-P3(b):TRUE COPY OF THE ORDER
DATED2809/2012 IN I.A19322009 IN O.S5322005 PASSED BY THE SUB COURT, ERNKULAM. EXHIBIT-P4:TRUE COPY OF THE REVIEW APPLICATION FILED VIDE I.A47202010 IN O.S5322005 ON FILES OF THE HONOURABLE I ADDL. SUB COURT, ERNAKULAM. EXHIBIT-P5:TRUE COPY OF THE COUNTER FILED IN I.A47202010 IN O.S5322005 ON FILES OF THE HONOURABLE I ADDL. SUB COURT, ERNAKULAM. EXHIBIT-P6:TRUE COPY OF THE DELY CONDONATION APPLICATION FILED VIDE I.A47212010 IN O.S5322005 ON FILES OF THE HONOURABLE I ADDL. SUB COURT, ERNAKULAM. EXHIBIT-P7:TRUE COPY OF THE COUNTER FILED IN I.A47212010 IN O.S5322005 ON FILES OF THE HONOURABLE I ADDL. SUB COURT, ERNAKULAM. EXHIBIT-P8:TRUE OCYP OF THE ORDER
DATED1110/2012 IN I.A47202010 IN O.S5322005 ON FILES OF THE HONOURABLE I ADDL. SUB COURT, ERNAKULAM. EXHIBIT-P9:TRUE COPY OF THE ORDER
DATED1110/2012 IN I.A47212010 IN O.S5322005 ON FILES OF THE HONOURABLE I ADDL. SUB COURT, ERNAKULAM. RESPONDENTS EXHIBITS: -------------------------------------- EXT.R7(1):TRUE COPY OF THE I.A.NO.1911/2008 IN O.S.NO.32/05 OF THE SUB COURT,ERNAKULAM. Pto O.P(CIVIL) NO.1306/2013 EXT.R7(2):TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER. EXT.R7(3):TRUE COPY OF THE I.A. NO.2366/2008 O.S.NO.532/05 OF THE SUB COURT,ERNAKULAM. EXT.R7(4):TRUE COPY OF THE ORDER
IN I.A.NO.2366/2008 IN O.S.NO.532/2005 OF THE SUB COURT,ERNAKULAM. EXT.R7(5):TRUE COPY OF THE ORDER
IN I.A.NO.2366/2008 IN O.S.NO.532/2005 OF THE SUB COURT,ERNAKULAM. EXT.R7(6):TRUE COPY OF THE CAVEAT NO.1106/2012 OF THE HIGH COURT OF KERALA. EXT.R7(7):TRUE COPY OF THE CAVEAT NO.1110/2012 HIGH COURT OF KERALA. //TRUE COPY// P.S.TO JUDGE pk P. BHAVADASAN, J.
========================== O.P.(C) Nos.1306 & 1307 OF2013========================== Dated this the 22nd day of November, 2014 JUDGMENT
The issue before this court in these two original petitions is a narrow one. It is the sad plight of the litigant who has been prosecuting his case from the year 2005 onwards. Two suits namely, O.S. No.532/2005 and O.S. No.419/2005 related for specific performance of an agreement for sale. These two suits were initially filed in two different courts and when one of the suits were listed for trial, the petitioner moved an application for transfer of the other suit to the same court and that was allowed and thereafter both the suits were directed to be jointly tried.
2. It is not in dispute in the list published on 20.02.2008, the suits were listed for trial to 17.03.2008. On 09.03.2008 it is stated that the petitioner moved I.A. No.1911/2008 for adjournment of the trial. That was not allowed. On 17.03.2008, when the suits were listed for trial, petitioner did not appear. The suits were dismissed. Soon thereafter, two applications were filed for restoration of the suits. They were O.P. (C) Nos.1306 & 1307 of 2013. 2 also dismissed for default. The petitioner then came forward two Interlocutory Applications for restoration of those applications. Curiously enough, the petitioner then resorted to review of the judgment dismissing the suits for default and filed two review petitions and also two delay condonation petitions to condone the delay in filing the review petitions. Consequently on the motion made by the petitioner, the two petitions which were filed for the restoration of the restoration applications were closed. The two delay condonation applications were posted repeatedly at the instance of the petitioner. Ultimately, finding that he was not interested in pursuing the matter, the review petitions were also dismissed. It is against those orders, these original petitions have been filed.
3. First of all, one fails to understand how review petitions could have been filed seeking to have the suits restored to file. Obviously, the dismissal of the suits could be treated to be only under Order XVII, Rule 2 of CPC, in which case the procedure for dismissal is as contained in Order IX. Whatever that be, the petitioner in his wisdom, chose to file review petitions. O.P. (C) Nos.1306 & 1307 of 2013. 3 4. Now it would appear from the averments of facts in the original petition that the petitioner was prosecuting the matter properly. The counter affidavit filed by the 7th respondent would show otherwise. A reading of the said counter affidavit shows gross negligence on the part of the petitioner in prosecuting the matter and the contention raised by Shri S.P. Chaly, the learned counsel appearing for the respondent that this is a deliberate attempt to drag the proceedings in order to harass the respondent cannot be said to be baseless.
5. Shri S.P. Chaly, the learned counsel appearing for the 7th contesting respondent pointed out that his client is a bonafide purchaser of the property for valuable considerations and he was dragged to court unnecessarily. According to the learned counsel, due to gross indifference and negligence, the petitioner is not entitled to the reliefs prayed for in these original petitions.
6. The only redeeming feature probably for the petitioner is that he had filed restoration applications within a short span of time and there is nothing to show that the suits were on any earlier occasion listed for trial and dismissed for default on the O.P. (C) Nos.1306 & 1307 of 2013. 4 part of the petitioner. Further, it will not be proper to deprive the petitioner a chance for establishing his case. But, at the same time, his conduct cannot be overlooked also. Whatever that be, in the interests of justice, an opportunity ought to be given to the petitioner to agitate his claim, of course, subject to payment of heavy costs to compensate the injury and loss caused to the contesting respondents.
7. In the result, these original petitions are allowed and the impugned orders are set aside, the two suits namely, O.S. No.532/2005 and O.S. No.419/2005 shall stand restored to file on condition that the petitioner pays a sum of Rs.50,000/- (Rupees fifty thousand only) as cost to the counsel for the respondents 7 and 8 in O.P.(C) No.1306/2013 and respondent Nos.6 and 7 in O.P.(C) No.1307/2013 within a period of three weeks from today.
8. The parties shall appear before the lower court on 17.12.2014. If the costs is not paid within the stipulated time, these original petitions will stand dismissed. If paid, the suits will be restored to file. On appearance of the parties on the specified date, untrammelled by any of the observations made, the trial court shall make every O.P. (C) Nos.1306 & 1307 of 2013. 5 endeavour to dispose of the suits expeditiously, at any rate, within a period of five months from the date of appearance of the parties. The costs awarded will relate to both the suits. Sd/- P. BHAVADASAN, JUDGE. //true copy// P.S. To Judge St/-