IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 17777 of 2009(O)
1. TOMY DEVASIA, VALLAPPATTIL,
... Petitioner
Vs
1. BABU ANTONY, NADAKKELPARAMPIL,
... Respondent
2. KUNJUMON DEVASIA, VALLAPPATTIL,
For Petitioner :SRI.J.OM PRAKASH
For Respondent :SRI.G.GOPAKUMAR (CHERTHALA)
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :03/11/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).No.17777 of 2009 - O
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Dated this the 3rd day of November, 2009
J U D G M E N T
Writ petition is filed seeking the following relief:
“To issue a writ of certiorari calling for the
records relating to Ext.P5 & P11 and quash the same.”
2. Petitioner is the second defendant in O.S.No.147 of
2008 on the file of the Sub Court, Alappuzha. Suit is one for
specific performance of an agreement of sale, and the first
respondent is the plaintiff and second respondent, the first
defendant. Petitioner/second defendant in fact is only the power
of attorney holder of the first defendant. In the above suit after
setting aside the defendants exparte, for the reason of nonfiling
of the written statement within the time fixed by the court, the
suit was initially dismissed after an affidavit was filed by the
plaintiff in support of the suit claim. It is admitted at the stage
when such affidavit was filed the balance court fee payable on the
suit claim had not been remitted by the plaintiff. Still, it was not
an order of rejection of the plaint, but, dismissal of that suit was
the view taken by the court when an application was moved
W.P.(C).No.17777 of 2009 – O
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subsequently by the plaintiff for reviewing the disposal of the suit
treating it as a rejection of the plaint and remitting the balance
court fee. Whatever that be, pursuant to dismissal of the review
petition, the plaintiff moved an application for restoration of the
suit under Order IX Rule 9 of the Code of Civil Procedure.
Without notice to the defendants that application was allowed
and, later, the court also passed Ext.P12 judgment decreeing the
suit. Propriety and correctness of Ext.P12 judgment is challenged
by the second defendant invoking the supervisory jurisdiction
vested with this Court under Article 227 of the Constitution of
India.
3. I heard the counsel on both sides.
4. From the submissions made and also perusing Ext.P12
order and also other exhibits tendered in the petition including
the order passed by the court below on the review petition moved
by the plaintiff, I find the orders passed by the court from time to
time after disposal of the suit, whether it be rejection of the
plaint or dismissal, were not only irregular but, improper and not
in tune with the provisions of law. Ext.P12 judgment passed by
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the court after restoring the suit without notice to the defendants
in any view of the matter cannot be sustained. At the time of
hearing the learned counsel for the petitioner submitted that his
only grievance is that he should be given an opportunity to have
a decision on merits of the suit after acceptance of his written
statement setting aside the exparte order passed against him.
Learned counsel for the first respondent also submitted that in
view of what had transpired earlier, and in the event of setting
aside the judgment an opportunity be provided to the plaintiff to
establish his suit claim. Considering the submissions made and
taking into account the circumstances involved in the case,
setting aside the judgment passed in the suit and also the order
declaring the defendants exparte, I direct the court below to
extend an opportunity to the defendant to file their written
statement. Suit has to be disposed of on its merits giving
opportunity to both sides to lead evidence in support of their
respective case. It is reported that the entire balance court fee
payable on the suit claim has already been remitted by the first
respondent/plaintiff in the suit. The defendants if they have not
W.P.(C).No.17777 of 2009 – O
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filed written statement so far shall file written statement within a
period of three weeks from the date of receipt/production of a
copy of this judgment, unless such period is extended by the
court below for sufficient reason. Parties are directed to appear
before the court below on 20.11.2009. Court below is directed to
dispose of the suit, as expeditiously as possible, at any rate,
within a period of six months from the date of receipt/production
of a copy of this judgment.
Writ petition is disposed of as above.
S.S.SATHEESACHANDRAN,
JUDGE.
bkn/-