IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP(C).No. 1235 of 2010(O)
1. JOLLY ISSAC W/O.LATE ISSAC THOMAS
... Petitioner
Vs
1. SHAKKELA SHUKOOR, W/O.P.A.ABDUL SHUCKOOR
... Respondent
For Petitioner :SRI.ALEX.M.SCARIA
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :21/12/2010
O R D E R
THOMAS P. JOSEPH, J.
-----------------------------------------
O.P(Civil). NO. 1235 OF 2010
----------------------------------------
Dated this the 21st day of December, 2010.
JUDGMENT
Respondent No.5 in A.S No.92 of 2006 of the Court of
learned Additional District Judge Kottayam is the petitioner
challenging Ext.P5, order to the extent it directed deposit of cost
of Rs.10,000/- as a condition to re-hear the appeal which was
disposed of as early as on 22.09.2008. Contention of learned
counsel is that having found that there was no proper service of
notice as petitioner in the appeal as provided under law, the
learned, Additional District Judge was not correct in imposing
cost and at any rate, cost imposed is excessive.
2. Learned Additional District Judge from the evidence of
PW1, the Process Server, and Exts.P1 to P5 found that at that
time PW1 attempted to serve notice of the appeal on petitioner,
the letter had shifted her residence from Karapuzha to
Kothamangalanm. The appeal arose from an order in insolvency
proceeding. There were other litigations also. Learned Additional
District Judge reached the conclusion that though, there was no
service of notice on the petitioner strictly in accordance with the
provisions of order 5 of the Code of Civil Procedure, evidence
O.P(Civil). NO. 1235 OF 2010 2
revealed that petitioner was aware of pendency of the appeal
but, took no steps to appear in the appeal. The appeal was
disposed of on 29.9.2008. Learned Additional District Judge also
considered the fact that the case involves more than Rs.8 crores
allegedly due to the respondent and other creditors from the
husband of petitioner. Husband of petitioner and petitioner
herself were partner of the firm.
3. It is not as if learned Additional District Judge was acting
without jurisdiction while directing deposit of cost. The question
whether on the facts of the case cost could or should have been
ordered or that cost is excessive are not matters required to be
decided by this Court under Article 227 of Constitution of India.
The ultimate order on I.A No. 476 of 2009, if it goes against
petitioner for non deposit of cost is appealable under order 43
Rule 1(t) of the Code of Civil Procedure. The questions raised by
petitioner in this petition can be raised by petitioner in such a
proceeding. There is no reason why this court should interfere in
the matter, at this stage in a proceeding under Article 227 of the
Constitution. Hence without prejudice to the right of petitioner
to challenge the ultimate order if it goes against her, this petition
O.P(Civil). NO. 1235 OF 2010 3
is closed.
THOMAS P. JOSEPH, JUDGE
mns