High Court Kerala High Court

M/S.J.C.R.Trading Pvt.Ltd. vs Marthanda Varma on 4 December, 2009

Kerala High Court
M/S.J.C.R.Trading Pvt.Ltd. vs Marthanda Varma on 4 December, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 30088 of 2009(O)


1. M/S.J.C.R.TRADING PVT.LTD.,COMPANY,
                      ...  Petitioner

                        Vs



1. MARTHANDA VARMA,S/O.SRI.R.R.VARMA,
                       ...       Respondent

2. RAMA VARMA,S/O.SRI.C.R.R.VARMA,

3. A.J.VARGHESE,S/O.A.V.JOSE,

4. A.J.PAUL,S/O.A.V.JOSE,

5. A.J.JOHN,S/O.A.V.JOSE,

                For Petitioner  :SRI.D.KISHORE

                For Respondent  :SRI.MVS.NAMBOOTHIRY

The Hon'ble MR. Justice S.S.SATHEESACHANDRAN

 Dated :04/12/2009

 O R D E R
                    S.S.SATHEESACHANDRAN, J.
                   -----------------------------------
                   W.P.(C).No.30088 of 2009 - O
                    ---------------------------------
             Dated this the 4th day of December, 2009

                           J U D G M E N T

Petitioner is the plaintiff in O.S.No.69 of 2000 on the file of

the 2nd Additional Sub Court, Thiruvananthapuram. Suit is one

for specific performance of a contract of sale and the respondents

are the defendants. Initially, the suit was instituted against the

first and second defendants alone, but, later, respondents 3 to 5

were impleaded as additional defendants since they have

purchased the property covered by the contract of sale during the

pendency of the suit. The defendants resisted the suit filing

separate written statements wherein they have disputed the

contract of sale set up by the plaintiff. The case came up in the

special list for trial after completion of the pretrial steps on

2.2.2008. Petitioner/plaintiff moved an application for removal of

the case from the list on medical grounds. That application was

allowed subject to payment of cost of Rs.1,000/- and the case

was adjourned to trial on 18.2.2008. On that adjourned day also

the plaintiff applied for further adjournment stating that the

W.P.(C).No.30088 of 2009 – O

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witness to be examined on its behalf is still indisposed. The court

again adjourned the case to 26.2.2008 imposing a cost of

Rs.2,000/-. On 26.2.2008, noticing that the cost ordered was

not paid the suit was dismissed imposing cost of Rs.5,000/- .

Plaintiff then moved an application, I.A.No.1796 of 2008 (Ext.P3)

for restoring the suit dismissed for default. That application was

allowed by the court vide Ext.P4 order subject to payment of cost

of Rs.7,000/- to each of the defendants. Petitioner/plaintiff

moved Ext.P5 application, I.A.No.6138 of 2009 for reviewing

Ext.P4 order. That review application was dismissed vide Ext.P6

order dated 25.8.2009. Propriety and correctness of Exts.P4 and

P6 orders are challenged in the writ petition invoking the

supervisory jurisdiction vested with this Court under Article 227

of the Constitution of India.

2. Notice given, first and second respondents have

entered appearance. Notice was also given to the counsel

appearing for the respondents 3 to 5 as directed and a memo had

been filed evidencing such service on those respondents. But,

those respondents have not entered appearance. I heard the

W.P.(C).No.30088 of 2009 – O

3

counsel for the petitioner and also the learned counsel for

respondents 1 & 2.

3. Perusing P4 and P6 orders with reference to the

submissions made by the counsel on both sides and taking note

of the facts and circumstances presented, I find no impropriety or

illegality in the orders passed by the learned Sub Judge imposing

cost on the petitioner as fixed under Ext.P4 order as a condition

precedent for restoring the suit which had been dismissed for

default. So far as P6 order dismissing the application filed by the

plaintiff for reviewing P4 order, prima facie, no justifiable ground

had been made out by the petitioner/plaintiff. However, learned

counsel for the petitioner/plaintiff urged for indulgence of this

Court submitting that a sum of Rs.2.75 Lakhs had been paid by

the plaintiff towards court fee on the suit valuation of Rs.30

Lakhs, the amount fixed under the contract of sale over the

property, and if P4 and P6 orders are allowed to stand

petitioner/plaintiff will be put to severe hardship and irreparable

injury. Petitioner/plaintiff may be permitted to have a decision in

his suit on merits is the plea canvassed by the learned counsel.

W.P.(C).No.30088 of 2009 – O

4

Suit instituted in the year 2000 continues to be on the file of the

court apparently for the lack of diligence, if not of culpable

negligence or willful default of the petitioner/plaintiff in

prosecuting the suit. Facts would disclose that the defendants

are forced to defend the suit claim raised for the last nearly a

decade in more than one court. Considering the above

circumstance, I find that indulgence can be shown to the

petitioner/plaintiff only on compensating the injury likely to be

suffered by the defendants in restoring a suit which had been

dismissed for default nearly one year ago. So much so, in lieu of

the sums imposed by the court as cost for

adjourning/dismissing/restoring of the case, Rs.2,000/- on

18.2.2008, Rs.5,000/- on 26.2.2008, and also Rs.7,000/- each to

the defendants under P3 allowing the application for restoration,

the petitioner/plaintiff is directed to pay Rs.10,000/- each to all

the five defendants as a condition precedent for setting aside P4

and P6 orders challenged in the petition. Cost ordered as above

shall be deposited or paid to the respective counsel appearing for

the defendants in the court below within three weeks from the

W.P.(C).No.30088 of 2009 – O

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date of this judgment. If cost is deposited or paid as directed

within the time limit fixed the court below shall restore the suit

on file and dispose it, as expeditiously as possible, at any rate,

before closing of the courts of the mid summer vacation, 2010.

In default of payment of cost as ordered within the time fixed,

the dismissal of suit by court below shall stand.

Writ petition disposed of as above.

S.S.SATHEESACHANDRAN,
JUDGE.

bkn/-