IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 35955 of 2008(E)
1. DEVARIKANDY PREMARAJAN, S/O.KORAN,
... Petitioner
Vs
1. DEVARIKANDY SAROJINI,
... Respondent
For Petitioner :SMT.M.M.DEEPA
For Respondent : No Appearance
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :10/12/2008
O R D E R
K.P.BALACHANDRAN, J.
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W. P. C No.35955 of 2008
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Dated this the 10th day of December, 2008
JUDGMENT
Petitioner is the defendant in O.S.319/05
on the file of the Munsiff’s Court,
Thalassery. Respondent who is the plaintiff in
the suit is his own sister. Suit was filed
seeking for a decree of mandatory injunction
to evict the petitioner from the scheduled
house which was allotted in partition to the
respondent to which the petitioner was also a
party. According to the respondent, she
permitted the petitioner to occupy the
scheduled house as a licensee with liability
to pay licence fee. The petitioner resisted
the suit filing written statement contending
that he was being allowed to occupy the house
till due share of the value fixed for the
house is paid and refuting the claim for
licensee fee and damages. Obviously, there was
W. P. C. No.35955 of 2008 -2-
no provision made in the partition deed
enabling the petitioner to occupy the
scheduled building. Consequently, it was only
a frivolous contention set up by the
petitioner/defendant to resist the suit. The
petitioner did not appear before court when
the suit stood posted for trial in the list
and consequently, the trial court decreed the
suit directing the petitioner to vacate the
scheduled building by a decree of mandatory
injunction; restraining him from committing
waste in the scheduled building and to pay the
respondent/plaintiff a sum of Rs.12,000/-
being arrears of licence fee from July 2003 to
July 2005 with interest at the rate of 6% per
annum; to pay damages for use and occupation
from 29/07/05 till date of suit at the rate of
Rs.4,200/- per month and at the rate of
Rs.3,000/- per month as damages for use and
occupation from the date of suit. The
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petitioner filed I.A.2164/07 in the court
below under Order IX Rule 13 CPC to set aside
the ex parte decree so passed on 06/10/07
alleging that he was bedridden and due to back
pain he could not contact his counsel and it
was therefore, that the counsel reported no
instructions when the case came up for trial
in the list. No document at all was produced
to substantiate his contention that he was
bedridden due to back pain nor has the
petitioner chosen to enter into the witness
box to tender oral evidence in support of his
application to set aside the ex parte decree.
Consequently, disbelieving the case of the
petitioner, the trial court vide Ext.P2 order
dismissed the petition filed by him to set
aside the ex parte decree. The petitioner
filed C.M.A.7/08 assailing the said order and
the appellate court dismissed the said appeal
concurring with the finding of the court
W. P. C. No.35955 of 2008 -4-
below. It is against the said concurrent
orders of the courts below that the petitioner
has come up with this Writ Petition.
2. The suit was decreed ex parte on
06/10/07 consequent on the counsel for the
petitioner reporting “no instructions” and
setting the petitioner ex parte. Though the
decree was passed on 06/10/07 the petitioner
waited up to the last day to file a petition
to set aside the ex parte decree and it was
filed on 04/11/07. Obviously, the purpose was
to protract the litigation as far as possible
so that he can continue in occupation of the
scheduled building belonging to the respondent
and alloted to her, without paying any rent to
the respondent. Even when the matter came up
before me for admission hearing, though the
counsel was asked about the willingness of the
petitioner either to vacate or to deposit the
amount decreed and for the purpose the case
W. P. C. No.35955 of 2008 -5-
was adjourned to this day vide speaking order
passed on 05/12/08, to enable the counsel to
get further instructions from the petitioner
as desired by counsel for the petitioner, he
is unable to submit as to what is the stand
taken by the petitioner. There is absolutely
no reason for this Court to interfere with the
concurrent orders passed by the courts below
dismissing the petition under Order IX Rule 13
C.P.C filed by the petitioner.
3. In the result, I dismiss this Writ
Petition.
K.P.BALACHANDRAN,
JUDGE
kns/-
W. P. C. No.35955 of 2008 -6-
K.P.BALACHANDRAN, J.
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W. P. C. No.35955 of 2008
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Dated this the 5th day of December, 2008
ORDER
Having advanced arguments in this Writ
Petition and probably on being convinced that
this Court is not inclined either to admit
this Writ Petition and much less to quash
Ext.P4 order of the first appellate court
confirming Ext.P2 order of the trial court
especially as the petitioner is residing in
the building alloted to the share of his
sister/the respondent even without paying any
amount by way rent or licence, counsel for the
petitioner submits that the case be posted to
10th December, 2008 to get further instructions
from the petitioner. Hence, post on 10/12/08.
K.P.BALACHANDRAN,
JUDGE
W. P. C. No.35955 of 2008 -7-
kns/-