Mary Matha Education Society Vs. Wilson Lazer - Court Judgment

SooperKanoon Citationsooperkanoon.com/1012762
CourtKerala High Court
Decided OnDec-19-2012
JudgeHONOURABLE MR.JUSTICE THOMAS P.JOSEPH
AppellantMary Matha Education Society
RespondentWilson Lazer
Excerpt:
in the high court of kerala at ernakulam present: the honourable mr.justice thomas p.joseph wednesday, the 19th day of december 2012 28th agrahayana 193 op(c).no. 4216 of 201.(o) -------------------------- ia.nos.623/2010 624 of 2010 in os.101/2009 of sub court,neyyattinkara petitioner(s): ------------------------ 1. mary matha education society, reg.no.t-284/97 paliyode dalumugahom.p.o.neyyattinkara thiruvananthapuram represented by its chairman r.muguran.2. r.murugan,, aged 5 years s/o.late p.ratnaswamy,chairman mary matha educationsociety,residing at rajcot thycaud,thiruvananthapuram.3. premakumari alias prema murugan, w/o.r.murugan,secretary,mary matha educationsociety mary matha education society,residing at rajcot thycaud,thiruvananthapuram. by advs.sri.r.s.kalkura smt.r.bindu sri.m.s.kalesh smt.a.v.priya sri.harish gopinath sri.gens george elavinamannil smt.m.k.leelakumari respondent(s): ------------------------ 1. wilson lazer, s/o.lazer nadar,house no.x/130,avikuzhy veedu olathanni,neyyattinkara.p.o,thiruvananthapuram pin-695121. o.p(c) no.4216 o”2. holy matha educational trust, reg.no.124/2008,neyyattinkara,avikuzhy veedu olathanni,neyyattinkara.p.o,thiruvananthapuram represented by its chairperson,beena,pin-695121.3. beena, d/o sulochana,chair person holy matha educationaltrust,residing at ushas varuvillai,thirupurathurdesom,thirupuram village thirupuram.p.o,pin-695133.4. university of kerala, university buildings,palayam,thiruvananthapuram represented by its registrar-695534.5. cochin university of science and technology, thrikkakara,cochin-682022 represented by itsregistrar.6. all india council for technical education, 7th floor,chanderlok building,janpath new delhi-110001 represented by its member secretary. by adv. sri.p.m.a.kalam,sc,cochin university of science and technology r5 by adv. sri.george poonthottam,sc, kerala university r4 by sri.s.krishnamurthy,sc, aicte r5 by sri.p.m.a.kalam, sc, cochin university of science and technology r5 this op (civil) having been finally heard on 19-12-2012, the court on the same day delivered the following: o.p(c) no.4216 of 2012 appendix petitioner(s)' exhibits: exhibit p1 true copy of the plaint in o.s. no.101 of 200.on the file of the subordinate judge's court, neyyattinkara. exhibit p2 true copy of the written statement submitted by the defendants 1 and 2 dated 9 9.2009 in o.s. no.101 of 200.on the file of the subordinate judge's court, neyyatinkara. exhibit p3 true copy of the written statement submitted by the third defendant dated 9 9.2009 in o.s. no.101 of 200.on the file of the subordinate judge's court, neyyatinkara. exhibit p4 true copy o the judgment in f.a.o. no.298 of 201.dated 13 11.2009. exhibit p5 true copy of the order in slp ) no.2201 of 201.dated 29 1.2010. exhibit p6 true copy of the judgment dated 1 3.2010 in o.s. no.101 of 200.on the file of the sub court, neyyatinkara. exhibit p7 true copy of the judgment dated 1 3.2010 in o.s. no.101 of 200.on the file of the sub court, neyyatinkara. exhibit p8 true copy of i.a. no.624 of 201.in o.s. no.101 of 200.on the file of the sub court, neyyatinkara filed by the 1st respondent. exhibit p9 true copy of the objections filed by the petitioner in i.a. no.623 of 201.in o.s.no.101 of 200.on the file of the sub court, neyyatinkara. exhibit p10 true copy of the objections filed by the petitioner in i.a.no.623 of 201.in o.s. no.101 of 200.on th file of the sub court, neyyatinkara. exhibit p11 true copy of the order dated 1 11.2012 in i.a.no.623 of 201.in o.s. no.101 of 200.on the file of the sub court, neyyatinkara. o.p(c) no.4216 of 2012 exhibit p12 true copy of the order dated 1 11.2012 in i.a. no.623 of 201.in o.s. no.101 of 200.on the file of the sub court, neyyatinkara. respondent(s)' exhibits: nil true copy p.s. to judge thomas p.joseph, j.==================================== o.p(c) no.4216 of 2012 ==================================== dated this the 19th day of december, 2012 judgment this original petition is in challenge of the order dated 01.11.2012 on i.a. nos.623 and 624 of 2010 in o.s. no.101 of 2009 of the sub court, neyyattinkara. grievance of the petitioners is that the said applications were decided by the learned sub judge without hearing them.2. petitioners filed o.s. no.101 of 2009 on 22.05.2009 for a declaration, cancellation of certain documents and other reliefs. i.a. no.760 of 2009 filed by the petitioners for temporary injunction was allowed against which respondents 2 and 3 filed f.a.o. no.298 of 2009. that appeal was dismissed on 13.11.2009 directing the trial court to dispose of the suit before 31.03.2010. respondents 2 and 3 challenged that judgment in s.l.p. no.2201 of 2010 but the slp was dismissed. the suit was posted for trial in the list on 01.03.2010. since the respondents were not present, an ex parte decree was passed. that was followed by the 1st respondent filing i.a. no.624 of 2010 and respondents 2 and 3 filing i.a. no.623 of 2010 to set aside the ex parte decree. o.p(c) no.4216 of 2010 -:2. :- 3. those applications were posted for return of notice on 18.06.2010. petitioners preferred objection to the said applications. those applications were allowed by exts.p11 and p12, orders dated 01.11.2012.4. it is submitted by the learned counsel for the petitioners that petitioners were not heard on the said applications. it is stated that the learned sub judge was sitting only on tuesdays and thursdays and that only urgent civil matters were being heard on those days. after petitioners preferred their objection to i.a. nos.623 and 624 of 2010 there were 22 postings for those applications, but the matter was not taken up for the reason aforesaid. on 01.11.2012 the applications were taken up (without notice to the petitioners) and allowed as if the petitioners were not represented.5. the learned counsel for the contesting respondents would say that it is incorrect to say that the applications were taken up abruptly on 01.12.2012 without notice to the petitioners. according to the learned counsel, petitioners were absent on various days when the applications were taken up for hearing.6. whatever be the reason, it is seen that i.a. nos.623 and 624 of 2010 are allowed by the learned sub judge without o.p(c) no.4216 of 2010 -:3. :- hearing the petitioners. it is also seen from exts.p11 and p12, orders that the learned sub judge has simply observed that there is no representation for the petitioners (respondents-plaintiffs in the applications), they are called, found absent, the matter is heard and the applications are allowed. the orders do not say that the learned sub judge was satisfied of the existence of sufficient cause to set aside the ex parte decree even if it is assumed that petitioners remained absent on 01.11.2012. learned sub judge had to enter a finding that there was sufficient cause to set aside the ex parte decree. exhibits p11 and p12, orders do not reveal that any such satisfaction was arrived at by the learned sub judge. in the circumstances i am inclined to interfere with exts.p11 and p12, orders but without making any observation on the merit of the contentions. resultantly, the original petition is allowed as under: (i) exhibits p11 and p12, orders are set aside and i.a. nos.623 and 624 of 2010 in o.s. no.101 of 2009 are remitted to the sub court, neyyattinkara for fresh decision after hearing both sides. o.p(c) no.4216 of 2010 -:4. :- (ii) the learned sub judge is directed to expedite disposal of the applications having regard to the direction made in the judgment in f.a.o. no.298 of 2009 regarding disposal of the case. thomas p. joseph, judge. vsv
Judgment:

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 19TH DAY OF DECEMBER 2012 28TH AGRAHAYANA 193 OP(C).NO. 4216 OF 201.(O) -------------------------- IA.NOs.623/2010 624 of 2010 IN OS.101/2009 OF SUB COURT,NEYYATTINKARA PETITIONER(S): ------------------------ 1. MARY MATHA EDUCATION SOCIETY, REG.NO.T-284/97 PALIYODE DALUMUGAHOM.P.O.NEYYATTINKARA THIRUVANANTHAPURAM REPRESENTED BY ITS CHAIRMAN R.MUGURAN.

2. R.MURUGAN,, AGED 5 YEARS S/O.LATE P.RATNASWAMY,CHAIRMAN MARY MATHA EDUCATIONSOCIETY,RESIDING AT RAJCOT THYCAUD,THIRUVANANTHAPURAM.

3. PREMAKUMARI ALIAS PREMA MURUGAN, W/O.R.MURUGAN,SECRETARY,MARY MATHA EDUCATIONSOCIETY MARY MATHA EDUCATION SOCIETY,RESIDING AT RAJCOT THYCAUD,THIRUVANANTHAPURAM. BY ADVS.SRI.R.S.KALKURA SMT.R.BINDU SRI.M.S.KALESH SMT.A.V.PRIYA SRI.HARISH GOPINATH SRI.GENS GEORGE ELAVINAMANNIL SMT.M.K.LEELAKUMARI RESPONDENT(S): ------------------------ 1. WILSON LAZER, S/O.LAZER NADAR,HOUSE NO.X/130,AVIKUZHY VEEDU OLATHANNI,NEYYATTINKARA.P.O,THIRUVANANTHAPURAM PIN-695121. O.P(C) No.4216 o”

2. HOLY MATHA EDUCATIONAL TRUST, REG.NO.124/2008,NEYYATTINKARA,AVIKUZHY VEEDU OLATHANNI,NEYYATTINKARA.P.O,THIRUVANANTHAPURAM REPRESENTED BY ITS CHAIRPERSON,BEENA,PIN-695121.

3. BEENA, D/O SULOCHANA,CHAIR PERSON HOLY MATHA EDUCATIONALTRUST,RESIDING AT USHAS VARUVILLAI,THIRUPURATHURDESOM,THIRUPURAM VILLAGE THIRUPURAM.P.O,PIN-695133.

4. UNIVERSITY OF KERALA, UNIVERSITY BUILDINGS,PALAYAM,THIRUVANANTHAPURAM REPRESENTED BY ITS REGISTRAR-695534.

5. COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, THRIKKAKARA,COCHIN-682022 REPRESENTED BY ITSREGISTRAR.

6. ALL INDIA COUNCIL FOR TECHNICAL EDUCATION, 7TH FLOOR,CHANDERLOK BUILDING,JANPATH NEW DELHI-110001 REPRESENTED BY ITS MEMBER SECRETARY. BY ADV. SRI.P.M.A.KALAM,SC,COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY R5 BY ADV. SRI.GEORGE POONTHOTTAM,SC, KERALA UNIVERSITY R4 BY SRI.S.KRISHNAMURTHY,SC, AICTE R5 BY SRI.P.M.A.KALAM, SC, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY R5 THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 19-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P(C) No.4216 of 2012 APPENDIX PETITIONER(S)' EXHIBITS: EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S. NO.101 OF 200.ON THE FILE OF THE SUBORDINATE JUDGE'S COURT, NEYYATTINKARA. EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT SUBMITTED BY THE DEFENDANTS 1 AND 2 DATED 9 9.2009 IN O.S. NO.101 OF 200.ON THE FILE OF THE SUBORDINATE JUDGE'S COURT, NEYYATINKARA. EXHIBIT P3 TRUE COPY OF THE WRITTEN STATEMENT SUBMITTED BY THE THIRD DEFENDANT DATED 9 9.2009 IN O.S. NO.101 OF 200.ON THE FILE OF THE SUBORDINATE JUDGE'S COURT, NEYYATINKARA. EXHIBIT P4 TRUE COPY O THE JUDGMENT IN F.A.O. NO.298 OF 201.DATED 13 11.2009. EXHIBIT P5 TRUE COPY OF THE ORDER IN SLP ) NO.2201 OF 201.DATED 29 1.2010. EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 1 3.2010 IN O.S. NO.101 OF 200.ON THE FILE OF THE SUB COURT, NEYYATINKARA. EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 1 3.2010 IN O.S. NO.101 OF 200.ON THE FILE OF THE SUB COURT, NEYYATINKARA. EXHIBIT P8 TRUE COPY OF I.A. NO.624 OF 201.IN O.S. NO.101 OF 200.ON THE FILE OF THE SUB COURT, NEYYATINKARA FILED BY THE 1ST RESPONDENT. EXHIBIT P9 TRUE COPY OF THE OBJECTIONS FILED BY THE PETITIONER IN I.A. NO.623 OF 201.IN O.S.NO.101 OF 200.ON THE FILE OF THE SUB COURT, NEYYATINKARA. EXHIBIT P10 TRUE COPY OF THE OBJECTIONS FILED BY THE PETITIONER IN I.A.NO.623 OF 201.IN O.S. NO.101 OF 200.ON TH FILE OF THE SUB COURT, NEYYATINKARA. EXHIBIT P11 TRUE COPY OF THE ORDER DATED 1 11.2012 IN I.A.NO.623 OF 201.IN O.S. NO.101 OF 200.ON THE FILE OF THE SUB COURT, NEYYATINKARA. O.P(C) No.4216 of 2012 EXHIBIT P12 TRUE COPY OF THE ORDER DATED 1 11.2012 IN I.A. NO.623 OF 201.IN O.S. NO.101 OF 200.ON THE FILE OF THE SUB COURT, NEYYATINKARA. RESPONDENT(S)' EXHIBITS: NIL TRUE COPY P.S. TO JUDGE THOMAS P.JOSEPH, J.

==================================== O.P(C) No.4216 of 2012 ==================================== Dated this the 19th day of December, 2012 JUDGMENT

This Original Petition is in challenge of the order dated 01.11.2012 on I.A. Nos.623 and 624 of 2010 in O.S. No.101 of 2009 of the Sub Court, Neyyattinkara. Grievance of the petitioners is that the said applications were decided by the learned Sub Judge without hearing them.

2. Petitioners filed O.S. No.101 of 2009 on 22.05.2009 for a declaration, cancellation of certain documents and other reliefs. I.A. No.760 of 2009 filed by the petitioners for temporary injunction was allowed against which respondents 2 and 3 filed F.A.O. No.298 of 2009. That appeal was dismissed on 13.11.2009 directing the trial court to dispose of the suit before 31.03.2010. Respondents 2 and 3 challenged that judgment in S.L.P. No.2201 of 2010 but the SLP was dismissed. The suit was posted for trial in the list on 01.03.2010. Since the respondents were not present, an ex parte decree was passed. That was followed by the 1st respondent filing I.A. No.624 of 2010 and respondents 2 and 3 filing I.A. No.623 of 2010 to set aside the ex parte decree. O.P(C) No.4216 of 2010 -:

2. :- 3. Those applications were posted for return of notice on 18.06.2010. Petitioners preferred objection to the said applications. Those applications were allowed by Exts.P11 and P12, orders dated 01.11.2012.

4. It is submitted by the learned counsel for the petitioners that petitioners were not heard on the said applications. It is stated that the learned Sub Judge was sitting only on Tuesdays and Thursdays and that only urgent civil matters were being heard on those days. After petitioners preferred their objection to I.A. Nos.623 and 624 of 2010 there were 22 postings for those applications, but the matter was not taken up for the reason aforesaid. On 01.11.2012 the applications were taken up (without notice to the petitioners) and allowed as if the petitioners were not represented.

5. The learned counsel for the contesting respondents would say that it is incorrect to say that the applications were taken up abruptly on 01.12.2012 without notice to the petitioners. According to the learned counsel, petitioners were absent on various days when the applications were taken up for hearing.

6. Whatever be the reason, it is seen that I.A. Nos.623 and 624 of 2010 are allowed by the learned Sub Judge without O.P(C) No.4216 of 2010 -:

3. :- hearing the petitioners. It is also seen from Exts.P11 and P12, orders that the learned Sub Judge has simply observed that there is no representation for the petitioners (respondents-plaintiffs in the applications), they are called, found absent, the matter is heard and the applications are allowed. The orders do not say that the learned Sub Judge was satisfied of the existence of sufficient cause to set aside the ex parte decree even if it is assumed that petitioners remained absent on 01.11.2012. Learned Sub Judge had to enter a finding that there was sufficient cause to set aside the ex parte decree. Exhibits P11 and P12, orders do not reveal that any such satisfaction was arrived at by the learned Sub Judge. In the circumstances I am inclined to interfere with Exts.P11 and P12, orders but without making any observation on the merit of the contentions. Resultantly, the Original Petition is allowed as under: (i) Exhibits P11 and P12, orders are set aside and I.A. Nos.623 and 624 of 2010 in O.S. No.101 of 2009 are remitted to the Sub Court, Neyyattinkara for fresh decision after hearing both sides. O.P(C) No.4216 of 2010 -:

4. :- (ii) The learned Sub Judge is directed to expedite disposal of the applications having regard to the direction made in the judgment in F.A.O. No.298 of 2009 regarding disposal of the case. THOMAS P. JOSEPH, JUDGE. vsv