IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 35627 of 2008(N)
1. KERALA POLICE HOUSING CO-OPERATIVE
... Petitioner
Vs
1. M.E.JOSE, S.B.ASSISTANT (RETIRED),
... Respondent
2. Y.ANIL KUMAR, IPS, C/O.SHRI.P.SEETHA
3. R.SARALAMONY, SB ASST.GRADE-1, SBCID
For Petitioner :SRI.N.JAMES KOSHY
For Respondent :SRI.PRAVEEN VYASAN
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :20/10/2009
O R D E R
S.S. SATHEESACHANDRAN, J.
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W.P.(C) No.35627 of 2008
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Dated: 20th October, 2009
JUDGMENT
The Writ Petition is filed seeking the following reliefs:
1. To set aside Exhibit P22 common order of the learned I Addl. Sub
Judge, Thiruvananthapuram and to allow Exhibits P19, P20 and P21
Interlocutory Applications in O.S.No.695 of 1994.
2. To declare that Exhibit P12 ex parte decree and Exhibit P13 ex
parte judgment and Exhibit P15 order passed by the learned I Addl.
Sub Judge, Thiruvananthapuram are null and void and unenforceable.
3. To direct learned I Addl. Sub Judge, Thiruvananthapuram to
reconsider Exhibits P19, P20 and P21 petitions in accordance with
law.
4. To stay all further proceedings in E.P.No.1/1998 in
O.S.No.695/1995 on the files of the learned I Addl. Sub Judge,
Thiruvananthapuram.
2. Petitioner is a Housing Co-operative Society registered
under the Kerala Co-operative Societies Act, 1969. The first
respondent, to whom three plots had been allotted by the Society, on
cancellation of such allotment, instituted a suit as O.S.No.695 of 1994
W.P.C.No.35627/08 – 2 –
before the Sub Court, Trivandrum seeking a decree of declaration of
his right and possession over such lands and for specific performance
of transfer of the rights over such lands in his favour and for other
reliefs. P8 is the copy of the plaint in that suit. An ex parte decree
was passed against the petitioner/defendant in the suit in favour of
the first respondent. P12 is the copy of that decree and P13 is the
copy of the judgment. Petitioner filed an application for setting aside
that ex parte decree under Order 9 Rule 13 of the Code of Civil
Procedure. P14 is the copy of that application. When that petition was
posted for enquiry, the petitioner remaining absent, it was dismissed
for default. P15 is the copy of that order. Petitioner challenged P15
order filing an appeal as C.M.A.No.67 of 1998 before the District
Court, Trivandrum. The appeal was dismissed vide P16 order as not
maintainable holding that his remedy was to move an application for
restoration of the petition dismissed for default. P16 order was
challenged by way of a revision as C.R.P.No.275 of 1999 before this
court and it was dismissed vide P18 order. Thereafter, the petitioner
moved P22 application to restore P14 dismissed for default with a
petition to condone the delay of 3282 days in moving such restoration
application. P20 is the copy of the petition filed to condone the delay.
W.P.C.No.35627/08 – 3 –
An application to stay the proceedings in execution from the ex parte
decree was also moved in the above proceedings and P19 is copy of
that petition. The learned Sub Judge considered all the three
petitions, P19 to P21, together and after hearing the counsel on both
sides dismissed them by P22 common order. Propriety and
correctness of P22 order is challenged in the Writ Petition invoking
the supervisory jurisdiction vested with this court under Article 227 of
the Constitution of India.
3. I heard the counsel on both sides. Learned counsel for the
petitioner assailed P22 order of the court below on two grounds. The
first ground is that the decree passed against a Co-operative Housing
Society which is governed by the Kerala Co-operative Societies Act
was a nullity and that ought to have been taken note of by the court
in considering the merit of the application moved for restoring the
application filed to set aside the ex parte decree after condoning the
delay, and further, the delay in moving such application ought to
have been condoned taking note that the petitioner was bonafide
prosecuting the appeal and revision, though unsuccessfully, against
the previous order dismissing his application for restoration for
default. I do not find any merit in the grounds canvassed by the
W.P.C.No.35627/08 – 4 –
learned counsel. The first respondent, as seen from P8 plaint, P12
decree and P13 judgment rendered in the suit, has claimed right and
possession over an immovable property and for other reliefs against
the Co-operative Housing Society; the adjudication of disputes
thereof can be done only by the civil court and not by any authority
under the Co-operative Societies Act. Section 100 of the Co-operative
Societies Act carves out an exemption over disputes involving
immovable property, which require to be adjudicated by a civil court,
and so much so, the plea of nullity of the decree canvassed to lend
assistance to the application moved by the petitioner is of no merit.
Similarly, the delay in moving the application for restoration
canvassing a case that petitioner was bonafide prosecuting an appeal
and revision has not been substantiated by any material whatsoever
before the court. No evidence was let in the court to explain the delay
leave alone the bonafides in prosecuting the appeal and revision. So
much so, I do not find any illegality or impropriety in P22 common
order passed by the court below declining to condone the delay in
moving the restoration application with the result of dismissing the
delay petition and also the restoration application. The court below
has imposed a cost of Rs.2000/- on the petitioner while dismissing
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the applications, directing it to deposit the sum within two weeks. The
imposition of cost fixed by the court below holding that the petitioner
has abused the process of law despite the procedure being pointed
out by the District Court in appeal cannot be approved. Filing of
revision by the petitioner against the judgment rendered in the
appeal by the District Court by itself will not constitute an abuse of
process of the court though such revision was not entertainable, and
later dismissing it holding so. Order of the cost imposed by the court
below shall stand set aside and, if any amount had been deposited by
the petitioner pursuant to the orders of the court below, it shall be
refunded. Subject to the modification with respect to the order of cost
and that alone as indicated above, the Writ Petition is closed.
srd S.S. SATHEESACHANDRAN, JUDGE