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
2
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
5
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/-