High Court of KeralaSingle Judge2024-02-12Original Petitions dismissed; costs awarded; te...

K.N. SREEKUMAR v. RAVIKUMAR and SANTHA SANKAR, SUJITHARA SANKAR and SUNIL SANKAR

Case / Petition Number:OP(C) Nos.1221/2020, 1236/2020 and 1242/2020

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. Jayachandran
Judgment Date: 2024-02-12
Court Decision / Holding: The Original Petitions are dismissed. The Court, however, permits the petitioner to pay the costs of Rs. 5,000 per respondent within ten days from 12 February 2024. If paid, the petitioner will be entitled to the benefit of the CMA orders and may proceed in the trial court in accordance with law. If the costs are not paid within the period, the CMA orders will stand and no further relief will be available.
Final Disposition: Original Petitions dismissed; costs awarded; ten-day window to pay costs; upon payment, CMA orders remain in effect and proceedings may continue in trial court.

Parties to the Case

Appellants / Petitioners

K.N. Sreekumar

Respondents

Ravikumar
Santhha Sankar
Sujithara Sankar
Sunil Sankar

Legal Representation & Advocates

Counsels for Petitioners

• Paul K. Varghese

Counsels for Respondents

• Dinesh R. Shenoy
• P. Rohit Premandan Sheno y
• Silesh S. Prabhu
• Suchithra K.R.
• Sambhu Narayanan S.
• Jomol Pius
• Manoj.R
• Helan Paulose

Case Synopsis & Summary

These Original Petitions challenge the orders passed by the District Court in CMA Nos. 36/2018, 38/2018 and 37/2018, arising from civil suits O.S. No. 341/2006 and O.S. No. 159/2005 in the Sub Court, Ernakulam. The suits concerned disputes over a path/way and related sale transactions, where ex-parte decrees and default dismissals occurred due to the petitioner’s non-appearance. The District Court’s C.M.A.s awarded costs of Rs. 5,000 to each respondent; the petitioner contends that the costs are onerous given his health condition and the number of respondents. He argues that repeated ex-parte proceedings on his part indicate hardship and that the appellate court’s allowance of costs should not bar restoration or continuance of the suits. The respondent’s counsel defends the costs as a reasonable consequence of default and argues that the ex-parte decrees and default dismissals were properly sustained. The Kerala High Court, after hearing, refuses to allow the Original Petitions, noting the petitioner’s third instance of ex-parte proceedings and default in both suits, and reiterates that condonation of delay or setting aside ex-parte decrees cannot be granted in these circumstances. The Court, however, allows the petitioner ten days from 12 February 2024 to pay the stipulated costs; if paid, the CMA orders will operate and the trial court can proceed. The judgment also references University of Delhi v. Union of India (2020) to underscore that persistent defaults and hardship to the opposite party are controlling factors in such discretion.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the cost of Rs. 5,000 per respondent is onerous and that his health condition warrants relief. He submits that the ex-parte decrees arose from repeated defaults and that restoration should be permitted after reasonable costs. He relies on the principle that hardship to the opposite party, and the overall delay, should be weighed against punitive costs in the context of condonation of delay. He also invokes University of Delhi v. Union of India (2020) to emphasize that long delays and casual defaults should not be condoned without proper justification, and urges leniency given his medical condition.

Contentions of Respondents

The respondents justify the costs as a reasonable consequence of the petitioner’s repeated default and ex-parte proceedings. They argue that the suits have suffered serious delays and that restoration attempts were rightly rejected by lower courts. They contend that ex-parte decrees/Dismissals were properly sustained and that the appellate court’s costs orders should not be disturbed. They rely on the record of prior ex-parte decrees and defaults as substantiation of non-diligence, asserting that no exceptional circumstance justifies waiving or reducing the costs.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
University of Delhi v. Union of India and Others	2020 (13) SCC 745	Positive	The judgment cites this decision to emphasize that consecutive/defaulted delays and casual approach to condonation cannot be condoned lightly and that hardship to the opposite party is a relevant consideration.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.JAYACHANDRAN** ## **MONDAY, THE 12[TH] DAY OF FEBRUARY 2024/23RD MAGHA, 1945** ## **OP(C) NO.1221 OF 2020** **AGAINST THE ORDER IN CMA NO.36/2018 OF ADDITIONAL DISTRICT COURT, ERNAKULAM DATED 31.01.2020 WHICH WWAS PREFERRED AGAINST THE ORDERS IN I.A.NO.206/2016 AS WELL AS 209/2016 IN O.S.NO.341/2006 ON THE FILE OF SUB COURT, ERNAKULAM DATED 31.10.2017.** ## **PETITIONER/APPELLANT/PETITIONER/PLAINTIFF:** K.N.SREEKUMAR, AGED 55 YEARS S/O.NARAYANAN NAIR, SAROVARAM, KANNAKARI VILLAGE, KANNAKARI P.O., MEENACHIL TALUK, KOTTAYAM DISTRICT-686632. BY ADV.PAUL K.VARGHESE ## **RESPONDENTS/RESPONDENTS/RESPONDENTS/DEFENDANTS:** 1 RAVIKUMAR, S/O.RAMANN MENON, AMBILI NIVAS, ERRO, NADAMA VILLAGE, TRIPUNITHURA, ERNAKULAM DISTRICT-682301. 2 SANTHA SANKAR, AGED 67 YEARS, W/O.DR.M.A.SHANKAR, CHAITHRAM, CANAL ROAD, THEKKUMBHAGAM DESOM, NADAMA VILLAGE, THRIPUNITHURA, ERNAKULAM DISTRICT-682301. 3 SUJITHARA SANKAR, AGED 32 YEARS, D/O.DR.M.A.SHANKAR, HOUSE NO.20/252A, NEAR VETENARY HOSPITAL, THRIPUNITHURA, ERNAKULAM DISTRICT-682301. 4 SUNIL SANKAR, AGED 30 YEARS, S/O.DR.M.A.SHANKAR, HOUSE NO.20/252A, NEAR VETENARY HOSPITAL, THRIPUNITHURA, ERNAKULAM DISTRICT-682301. BY ADVS. DINESH R.SHENOY P.ROHIT PREMANANDAN SHENOY(K/000195/2017) SILESH S.PRABHU(K/510/2020) SUCHITHRA K.R.(K/314/2006) SAMBHU NARAYANAN S.(K/2143/2022) JOMOL PIUS(K/002269/2022) **OP(C) Nos.1221, 1236 and 1242 of 2020** ## **- 2 -** MANOJ.R(K/000423/2023) HELAN PAULOSE(K/001621/2023) THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12.02.2024, ALONG WITH OP(C).1236/2020 AND OP(C).1242/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **MONDAY, THE 12[TH] DAY OF FEBRUARY 2024/23RD MAGHA, 1945** **OP(C) NO.1236 OF 2020** **AGAINST THE ORDER IN CMA NO.38/2018 ON THE FILE OF ADDITIONAL DISTRICT COURT, ERNAKULAM DATED 31.01.2020 WHICH WAS PREFERRED AGAINST THE ORDERS IN I.A.NO.211/2016 AS WELL AS 212/2016 IN O.S.NO.159/2005 ON THE FILE IIND ADDTIONAL SUB COURT, ERNAKULAM DATED 31.10.2017.** ## **PETITIONER/APPELLANT/PETITIONER/2ND DEFENDANT:** K.N.SREEKUMAR, AGED 55 YEARS, S/O.NARAYANAN NAIR, SAROVARAM, KANNAKARI VILLAGE, KANNAKARI P.O., MEENACHIL TALUK, KOTTAYAM DISTRICT - 686 632. BY ADV. PAUL K.VARGHESE ## **RESPONDENTS/RESPONDENTS/PLAINTIFF/1ST DEFENDANT:** 1 M.RAVIKUMAR, AGED 72 YEARS, S/O.NARAYANAN NAIR, SAROVARAIM, KANNAKARI VILLAGE, MEENACHIL TALUK, KOTTAYAM - 686 631. 2 KESHUKKUTTAN NAIR, AGED 76 YEARS, S/O.LATE MADHAVAN PILLAI, VALAVAKKOT HOUSE, ETTUMANOOR, ETTUMANOOR VILLAGE, ETTUMANNOOR TALUK, KOTTAYAM DISTRICT - 686 631. BY ADVS. S.SREEJITH (S-3453) DINESH R.SHENOY P.ROHIT PREMANANDAN SHENOY(K/000195/2017) SILESH S. PRABHU(K/510/2020) SUCHITHRA K.R.(K/314/2006) SAMBHU NARAYANAN S.(K/2143/2022) JOMOL PIUS(K/002269/2022) MANOJ.R(K/000423/2023) HELAN PAULOSE(K/001621/2023) THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12.02.2024, ALONG WITH OP(C).1242/2020 AND 1221/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **OP(C) Nos.1221, 1236 and 1242 of 2020** **- 4 -** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN MONDAY, THE 12[TH] DAY OF FEBRUARY 2024/23RD MAGHA, 1945 OP(C) NO.1242 OF 2020** **AGAINST THE ORDER IN CMA 37/2018 OF ADDITIONAL DISTRICT COURT - VIII, ERNAKULAM DATED 31.01.2020 WHICH WAS PREFERRED AGAINST THE ORDERS IN I.A.NO.207/2016 AS WELL AS 208/2016 IN OS 341/2006 OF SUB COURT, ERNAKULAM DATED 31.10.2017** ## **PETITIONER/APPELLANT/PETITIONER/PLAINTIFF:** K.N.SREEKUMAR, AGED 55 YEARS, S/O.NARAYANAN NAIR, SAROVARAM, KANNAKARI VILLAGE, KANNAKARI P.O., MEENACHIL TALUK, KOTTAYAM DISTRICT-686 632. BY ADV.PAUL K.VARGHESE ## **RESPONDENTS/RESPONDENTS/RESPONDENTS/DEFENDANTS:** 1 RAVIKUMAR, S/O.RAMAN MENON, AMBILI NIVAS, ERRO, NADAMA VILLAGE, TRIPUNITHURA, ERNAKULAM DISTRICT-682 301. 2 SANTHA SANKAR, AGED 67 YEARS, W/O.DR.M.A.SHANKAR, CHAITHRAM, CANAL ROAD, THEKKUMBHAGAM DESOM, NADAMA VILLAGE, THRIPUNITHURA, ERNAKULAM DISTRICT-682 301. 3 SUJITHARA SANKAR, AGED 32 YEARS, D/O.DR.M.A.SHANKAR, HOUSE NO.20/252A, NEAR VETENARY HOSPITAL, THRIPUNITHURA, ERNAKULAM DISTRICT-682 301. 4 SUNIL SANKAR, AGED 30 YEARS S/O.DR.M.A.SHANKAR, HOUSE NO.20/252A, NEAR VETENARY HOSPITAL, THRIPUNITHURA, ERNAKULAM DISTRICT-682 301. **OP(C) Nos.1221, 1236 and 1242 of 2020** **- 5 -** BY ADVS. DINESH R.SHENOY P.ROHIT PREMANANDAN SHENOY(K/000195/2017) SILESH S. PRABHU(K/510/2020) SAMBHU NARAYANAN S.(K/2143/2022) SUCHITHRA K.R.(K/314/2006) JOMOL PIUS(K/002269/2022) MANOJ.R(K/000423/2023) HELAN PAULOSE(K/001621/2023) THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12.02.2024, ALONG WITH OP(C).1236/2020 AND OP(C) 1221/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **OP(C) Nos.1221, 1236 and 1242 of 2020** ## **- 6 -** ## **JUDGMENT** ## **Dated, this the 12[th] February, 2024** **In all the above Original Petitions, orders exhibited at Ext.P1 are under challenge. O.P.(C) No.1221/2020 stems from O.S.No.341/2006, O.P. No.1236/2020 from O.S.No.159/2005 and O.P.(C) No.1242/2020 from a counter claim in O.S. No.341/2006.** **2. The suit, O.S.No.159/2005, was initiated by the 1[st] respondent herein for declaration that a purchase certificate and consequent sale deed in favour of the petitioner herein are null and void. O.S.No.341/2006 was preferred by the petitioner herein as plaintiff for injunction in respect of a path way, in which suit, there is a counter claim laid by the respondents herein. Due to nonappearance of the petitioner herein, the suit, O.S.No.341/2006 was dismissed for default and the** **OP(C) Nos.1221, 1236 and 1242 of 2020** **- 7 -** **counter claim therein, as also, the suit, O.S. No.159/2005 were decreed ex-parte. Necessary application for restoration, as also, to set aside the ex-parte decree, as the case may be, were filed, with a delay of 153 days. The same was dismissed by the trial court, challenging which orders, C.M.A.s were preferred before the District Court. The same were allowed on cost of Rs.5,000/each to the respondents. Challenging the orders in the C.M.A.s, insofar as it pertains to the cost component, the above Original Petitions were preferred by the petitioner, who is the plaintiff in O.S. No.341/2006 and the defendant in O.S.No.159/2005.** **3. Heard the learned counsel for the petitioner, 1[st] respondent and also other respondents.** **4. According to the learned counsel for the petitioner, the cost of Rs.5,000/- each to the respondents is onerous and the petitioner is drawn** **OP(C) Nos.1221, 1236 and 1242 of 2020** **- 8 -** **to shoulder the responsibility of paying a substantial sum of Rs.50,000/- altogether towards cost, having regard to the number of respondents. It was also pointed out that the petitioner is a person suffering from liver disease, as could be seen from Ext.P2 certificate.** **5. The above plea is seriously opposed by the learned counsel for the 1[st] respondent on various grounds. The first aspect espoused is that, this is the third occasion, where the petitioner was set ex-parte and a decree has been passed in O.S. No.159/2005. Similarly, O.S.No.341/2006 was dismissed for default on two occasions earlier. Both were on account of the calculated nonappearance on the part of the petitioner herein, is the submission made. The ex-parte decree, as also, the decree dismissing the suit for default were set aside on two previous occasions by the trial court. However, on the third occasion also, the petitioner adopted the same tactics, which is** **OP(C) Nos.1221, 1236 and 1242 of 2020** ## **- 9 -** **the reason why the restoration application, as also, the petition to set aside the ex-parte decree filed in the respective suits were dismissed by the trial court. Before the 1[st] appellate court, it was submitted on behalf of the petitioner that they are prepared to pay reasonable cost. However, the orders passed in the C.M.A.s were not complied with.** **6. Secondly, the learned counsel would point out that the defendant (petitioner herein) in the suit, O.S.No.159/2005, had, in fact, abandoned the suit, as could be seen from paragraph no.7 of the judgment and that they have made use of the expression employed therein to the effect that the defendants were set ex-parte, in preferring application to set aside the ex-parte decree. This being a case of abandonment, there arises no question of setting aside the ex-parte decree, is the submission made.** **OP(C) Nos.1221, 1236 and 1242 of 2020** **- 10 -** **7. The third aspect highlighted by the learned counsel is based on the judgment of the Honourable Supreme Court in University of Delhi v. Union of India and Others [2020 (13) SCC 745], wherein consecutive and deliberate default on the part of a litigant is seen dealt with in paragraph nos.21 and 28 of the judgment. It was held that, if the litigant, who seeks to condone the delay, adopts a casual approach, despite being aware of the law of limitation, occasioning long delay without proper explanation, the delay and laches cannot be condoned lightly. In such cases, the accrued right of the opposite party has to be considered with the deserving significance. The Honourable Supreme Court also held that the hardship that will be caused to the opposite party is also a relevant criteria. Finally, learned counsel pointed out that the 1[st] respondent herein is aged 85 years, besides suffering from various ailments and hence it is difficult for him to prosecute/contest the suits, if the Original Petitions are allowed.** **OP(C) Nos.1221, 1236 and 1242 of 2020** ## **- 11 -** **8. Learned counsel for other respondents would, however, support the petitioner in doing away with the cost.** **9. Having heard the learned counsel appearing for the respective parties, this Court finds that the Original Petitions are not liable to be allowed. As rightly pointed out by the learned counsel for the 1[st] respondent, this is the third occasion, where the petitioner was set ex-parte in O.S. No.159/2005; and his suit, O.S.No.341/2006, was dismissed for default for the second time. Even on the third occasion, the petitioner was not diligent, which resulted in the petitioner's suit being dismissed and the 1[st] respondent's suit being decreed. The application to set aside the ex-parte order, as also, to restore the suit are dismissed by the trial court and it is the first appellate court, which allowed C.M.A on a cost of Rs.5,000/each to the respondents. The facts and circumstances does not permit any lenience to be** **OP(C) Nos.1221, 1236 and 1242 of 2020** **- 12 -** **shown to the petitioner in the matter of payment of cost. As already indicated, these Original Petitions are preferred to avoid payment of cost alone.** **10. The surviving point with respect to the objection made by the learned counsel for the 1[st] respondent to the effect that the cost, having not been paid on time stipulated by the 1[st] appellate court, shall not be permitted to be paid now, so as to breathe life to the already dismissed suit of the plaintiff/petitioner and also to resuscitate the suit, which has been decreed in favour of the 1[st] respondent. In this regard, it is worthwhile to note that the concept of delay, as dealt with by the Honourable Supreme Court in University of Delhi (supra), is in the context of condonation of delay; whereas, in the instant facts, the delay has already been condoned by the 1[st] appellate court in the C.M.A, against which no challenge has been carried by the 1[st] respondent** **OP(C) Nos.1221, 1236 and 1242 of 2020** **- 13 -** **herein. The short compass of controversy is with respect to the quantum of cost, which was sought to be challenged by the petitioner herein. When that challenge is repelled, it is only just and proper that the petitioner be afforded with an opportunity to comply with the orders in the C.M.As, which are not under challenge before this Court in any other respect, except the quantum of cost.** **11. In the circumstances, this Court, even while dismissing the Original Petitions, would clarify that it would be open for the petitioner to pay the cost in terms of the order in the C.M.A. within a period of ten days from today (12.02.2024). It is clarified that no extension, whatsoever, will be granted to the said period of 10 days, in the peculiar facts and circumstances herein. If the cost is paid as stipulated above, the petitioner will be entitled to the benefit in the order in C.M.As and can proceed with the** **OP(C) Nos.1221, 1236 and 1242 of 2020** **- 14 -** **matters in the trial court, in accordance with law.** **12. As requested by the learned counsel for the petitioner, the petitioner is permitted to pay the cost to the respective counsel appearing for the respondents in the court below. The petitioner will produce adequate proof as regards payment of cost within the time stipulated above, before the court below, whereupon, the trial court will proceed with the matter in accordance with law.** **These Original Petitions are disposed of, as above.** **Sd/-** ## **C.JAYACHANDRAN, JUDGE** ww ## **OP(C) Nos.1221, 1236 and 1242 of 2020** ## **- 15 -** ## **APPENDIX OF OP(C) 1221/2020** PETITIONER'S EXHIBITS: EXHIBIT P1 A TRUE COPY OF THE ORDER IN CMA NO.36/2018 ON THE FILE OF ADDL. DISTRICT COURT-VIII, ERNAKULAM DATED 31.1.2020. EXHIBIT P2 A TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED BY GLENEAGLES GLOBAL HEALTH CITY HOSPITAL CHENNAI DATED 16.1.2020. **OP(C) Nos.1221, 1236 and 1242 of 2020** ## **- 16 -** ## **APPENDIX OF OP(C) 1236/2020** ## PETITIONER'S EXHIBITS: EXHIBIT P1 A TRUE COPY OF THE ORDER IN CMA NO. 38/2018 ON THE FILE OF ADDL. DISTRICT COURT, ERNAKULAM DATED 31.1.2020. EXHIBIT P2 A TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED BY GLENEAGLES GLOBAL HEALTH CITY HOSPITAL CHENNAI DATED 16.1.2020. **OP(C) Nos.1221, 1236 and 1242 of 2020** ## **- 17 -** ## **APPENDIX OF OP(C) 1242/2020** PETITIONER'S EXHIBITS: EXHIBIT P1 A TRUE COPY OF THE ORDER IN CMA NO.37/2018 ON THE FILE OF ADDL.DISTRICT COURT-VIII, ERNAKULAM DATED 31.01.2020. EXHIBIT P2 A TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED BY GLENEAGLES GLOBAL HEALTH CITY HOSPITAL CHENNAI DATED 16.01.2020.