OP(C) No. 232 of 2024 (In the High Court of Kerala at Ernakulam)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **FRIDAY, THE 22[ND] DAY OF MARCH 2024 / 2ND CHAITHRA, 1946** ## **OP(C) NO. 232 OF 2024** **AGAINST THE ORDER/JUDGMENT DATED 25.07.2023 IN OS NO.1162 OF 2019 OF PRINCIPAL MUNSIFF COURT, ERNAKULAM** ## **PETITIONERS/PETITIONERS/DEFENDANTS 4 TO 8:** - **1 MRS. P.M SAJINA AGED 41 YEARS W/O ABDUL RAZZAK, ELAVAKKATTU HOUSE, KAKKANAD KARA, VAZHAKKALA VILLAGE, KANAYANNOOR TALUK, THRIKKAKARA, PIN - 682021** - **2 MRS. SOUDHA AGED 48 YEARS W/O ABDUL WAHAB, ELAVAKKATTU HOUSE, KAKKANAD KARA, VAZHAKKALA VILLAGE, KANAYANNOOR TALUK, THRIKKAKARA, PIN - 682021** - **3 ABOOBACKER AGED 71 YEARS S/O HASSAN, KUREEKKODE HOUSE, KAKKANAD KARA, VAZHAKKALA VILLAGE, KANAYANNOOR TALUK, KAKKANAD, PIN - 682030** - **4 MRS. SUHARA AGED 62 YEARS W/O ABOOBACKER, KUREEKKODE HOUSE, KAKKANAD KARA, VAZHAKKALA VILLAGE, KANAYANNOOR TALUK, KAKKANAD, PIN - 682030** - **5 M/S MODERN HOMES, A PARTNERSHIP FIRM, REPRESENTED BY MANAGING PARTNER, M.B ABDUL SALAM AGED 58 YEARS S/O PAREETH VEERAVU, MANATH PEECHAMPILLY HOUSE, KAKKANAD KARA, KAKKANAD, PIN - 682021** - **BY ADVS.** **M.A.VAHEEDA BABU BABU KARUKAPADATH P.U.VINOD KUMAR ARYA RAGHUNATH AJWIN P LALSON KARUKAPADATH WAZIM BABU P.LAKSHMI AYSHA E.M. SHIFANA KAISE DENNIS BIJU** **RESPONDENTS/RESPONDENTS/PLAINTIFFS & DEFENDANTS 1 TO 3:** **O.P.(C).No. 232 of 2024** ..2.. - **1 CATHOLIC TRUTH CHARITABLE SOCIETY, REG. NO. EKM/TC/538/18, CLASSIC TOWER, PERUMBAVOOR, REPRESENTED BY ITS PRESIDENT, SEBASTIAN KOYIKKARA AGED 70 YEARS S/O KURIAN, KOYIKKARA HOUSE, B.O.C ROAD, PERUMBAVOOR, PIN - 683542** - **2 CATHOLIC TRUTH CHARITABLE SOCIETY, REG.NO.EKM/TC/538/18, CLASSIC TOWER, PERUMBAVOOR, REPRESENTED BY ITS SECRETARY, JOSHY VARGHESE, AGED 60 YEARS** - **S/O VARGHESE, THELAKKADAN HOUSE, PERUMBAVOOR KARA, MALAMURI BHAGOM, RAMAMANGALAM VILLAGE, PIN - 683542** - **3 SEBASTIAN KOYIKKARA, S/O KURIAN, KOYIKKARA HOUSE, B.O.C ROAD, PERUMBAVOOR, PIN - 683542** - **4 JOSHY VARGHESE AGED 60 YEARS** - **S/O VARGHESE, THELAKKADAN HOUSE, PERUMBAVOOR KARA, MALAMURI BHAGOM, RAMAMANGALAM VILLAGE, PIN - 683541** - **5 ERNAKULAM-ANGAMALY ARCHDIOCESE BISHOP HOUSE, ERNAKULAM, REPRESENTED BY MAJOR ARCH BISHOP CARDINAL MAR GEORGE ALANCHERRY, S/O PHILIPOSE, BISHOP HOUSE, ERNAKULAM, PIN - 682031** - **6 CARDINAL MAR GEORGE ALANCHERRY AGED 78 YEARS S/O PHILIPOSE, BISHOP HOUSE, ERNAKULAM, PIN - 682031** **7 FR. JOSHY PUTHUVA AGED 48 YEARS S/O OUSEPH, VIKARI, ST.JOHNS CHURCH, UNIVERSITY CENTER, CUSAT, PIN - 682032** **BY ADVS. V.RAJENDRAN (PERUMBAVOOR) VARGHESE C.KURIAKOSE Jijo Paul Kallookkaran N.RAJESH(K/1717/1999) GOPAKUMAR P.(K/1116-C/2011) GIMMY P ANTONY(K/000150/1989) JERRY JAISON(K/1422/2023) C.SNEHA(K/000359/2022) RAJEEV P.R.(K/002276/2023)** **O.P.(C).No. 232 of 2024** ..3.. **AMRITHA.J(K/552/2020) KURUVILLA MATHEW(K/426/2023) VIPIN C. VARGHESE(K/000507/2023)** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **O.P.(C).No. 232 of 2024** **==> picture [37 x 8] intentionally omitted <==** ## **J U D G M E N T** ## _**Dated this the 22[nd] day of March, 2024**_ **This Original petition is preferred by defendants 4 to 8 in the suit O.S.No.1162/2019, of the Principal Munsiff Court, Ernakulam, aggrieved by Ext.P4 and P6 orders. Ext.P4 refused to set aside an** _**ex-parte**_ **order as against the present petitioners. Ext.P6 refused to accept the written statement on the premise that the petitioners have already been set** _**ex-parte**_ **.** **2. Heard the learned counsel for the petitioners and respondents 1 to 4.** **3. Learned counsel for the petitioners would submit that, the suit is one for declaration that the 1[st] respondent-Charitable Society has no power or authority to transfer immovable property, which** **O.P.(C).No. 232 of 2024** **==> picture [37 x 8] intentionally omitted <==** **belongs to the Archdiocese, Ernakulam, and also to set aside certain sale deeds. The petitioners are the purchasers in the sale deed, which are sought to be set aside. It was submitted that, the main defendants were defendants 1 to 3, who were to answer the thrust of the allegations made in the plaint, as regards the authority of the Charitable Society to effect transfer of immovable property. In fact, the petitioners (defendants 4 to 8), were waiting for the written statement of the said defendants. On 08.06.2023, the petitioners were set** _**ex-parte**_ **. On 20.06.2023, Ext.P2 interlocutory application was filed to set aside the** _**ex-parte**_ **order. The same was dismissed on 25.07.2023 by Ext.P4 order, essentially for the reason that the written statement was not filed along with application to set aside the** _**ex-parte**_ **order. On 05.08.2023, the petitioners filed a written statement, along with Ext.P5 application to receive the same. However, by Ext.P6 order, the** **O.P.(C).No. 232 of 2024** **==> picture [37 x 8] intentionally omitted <==** **said application was also dismissed, holding that the petitioners have already been set** _**ex-parte**_ **. Learned counsel would submit that, a lenient view may be taken and the petitioners may be afforded an opportunity to contest the matter on merits.** **4. Per contra, this application was seriously opposed by the learned counsel for respondents 1 to 4, who are the plaintiffs in the suit. Learned counsel would point out that, the suit was filed on 02.09.2019 and that the present petitioners (defendants 4 to 8) appeared on 13.02.2020, whereafter, there were 16 consecutive postings, affording opportunity for the** **petitioners to file the written statement. However, no written statement was filed. Another aspect pointed out by the learned counsel for the petitioner is that, the reasons stated for setting aside the** _**ex-parte**_ **order is not recognizable in law. What is seen stated is that the petitioners** **O.P.(C).No. 232 of 2024** **==> picture [37 x 8] intentionally omitted <==** **were not aware of the Canon Law, which can hardly be recognized as a reason to set aside the** _**exparte**_ **order. Learned counsel relied upon the decision of the Hon'ble Supreme Court in** _**Om Prakash Gupta v. Union of India**_ **[2000 KHC 1897], wherein it was held that, since the written statement was not filed within a period of more than two years, the indulgence shown by the High Court for filing written statement was not justified.** **5. Learned counsel for the 6th respondent would support the petitioners' cause for setting aside the ex-parte order.** **6. Having heard the learned counsel appearing on both sides, this Court is of the opinion that, the instant Original Petition has to be allowed. It is well settled that the policy of law is to have adjudication of matters on merits and not on** **O.P.(C).No. 232 of 2024** **==> picture [37 x 8] intentionally omitted <==** **technicalities. It is true that, the petitioners were given adequate opportunity to file the written statement, which they have not availed. However, if the laches and lapses on the part of the petitioners is compensatable in terms of money, an opportunity on merits has to be granted to the petitioners, rather than pinning them down to their folly on the technicality that they have not filed the written statement on time. The Hon'ble Supreme Court in** _**Salem Advocate Bar Association, T.N. v. Union of India**_ **[2005 (6) SCC 344], held that the period stipulated for filing the written statement as per the Code, is not mandatory, but only directory. This court also takes into account the fact that, the written statement have also been filed in fact, along with Ext.P5 application to receive the same. The same was dismissed vide Ext.P6 order only for the** **reason that the petitioners were set** _**ex-parte,**_ **vide Ext.P4 order. In these circumstances, the** **O.P.(C).No. 232 of 2024** **==> picture [37 x 8] intentionally omitted <==** **Ext.P4 and P6 orders are liable to be set aside, but on appropriate terms, especially in view of the allegation that as many as 16 postings were there for the petitioners to file their written statement.** **7. In this circumstances, this Court directs the petitioners to pay a sum of Rs.20,000/-(rupees twenty thousand) to respondents 1 to 4, who are the plaintiffs in suit, within a period of one month from today(22.03.2024). Once the payment as directed above is effected and reported before the** **trial court, the trial court will take up Ext.P2 application and will allow the same. The written statement shall also be received on files. The suit will proceed in accordance with law thereafter. In case the payment as directed above is not made, the dismissal of Ext.P2 application will stand confirmed.** **O.P.(C).No. 232 of 2024** ..10.. **The Original Petition is disposed of, as above.** Sd/- **C. JAYACHANDRAN JUDGE** **TR** **O.P.(C).No. 232 of 2024** ..11.. ## **APPENDIX OF OP(C) 232/2024** ## **PETITIONER EXHIBITS** |**Exhibit P1**|**A TRUE COPY OF THE PLAINT DATED**| |---|---| ||**02/09/2019 IN OS NO. 1162/2019**| ||**PRESENTED BEFORE THE HON'BLE PRINCIPAL**| ||**MUNSIFF'S COURT, ERNAKULAM**| |**Exhibit P2**|**A TRUE COPY OF THE I.A. NO.1/2023 DATED**| ||**20/07/2023 FILED BEFORE THE HON'BLE**| ||**PRINCIPAL MUNSIFF'S COURT, ERNAKULAM**| |**Exhibit P3**|**A TRUE COPY OF THE OBJECTION IN I.A.**| ||**NO.1/2023 DATED 21/07/2023 FILED BEFORE**| ||**THE HON'BLE PRINCIPAL MUNSIFF'S COURT,**| ||**ERNAKULAM**| |**Exhibit P 4**|**A TRUE COPY OF ORDER DATED 25/07/2023,**| ||**DISMISSING I.A. 1/2023 IN O.S. NO.**| ||**1162/2019**| |**Exhibit P5**|**A TRUE COPY OF I.A. 3/2023 DATED**| ||**05/08/2023 FILED BY THE PETITIONERS**| |**Exhibit P6**|**A TRUE COPY OF THE ORDER DATED**| ||**18/09/2023 DISMISSING I.A. NO. 3/2023**| ||**BY THE HON'BLE PRINCIPAL MUNSIFF'S**| ||**COURT, ERNAKULAM**| |**Exhibit P7**|**A TRUE COPY OF THE WRITTEN STATEMENT**| ||**DATED**<br>**05/08/2023**<br>**FILED**<br>**BY**<br>**THE**| ||**PETITIONERS**<br>**BEFORE**<br>**THE**<br>**HON'BLE**| ||**PRINCIPAL MUNSIFF'S COURT, ERNAKULAM**| |**Exhibit P8**|**A TRUE COPY OF THE ORDER DATED**| ||**29/09/2023**<br>**STAYING**<br>**ALL**<br>**FURTHER**| ||**PROCEEDINGS IN O.S.1162/2019**|