OP(C) No. 65 of 2017

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. Jayachandran
Judgment Date: 2024-04-01
Court Decision / Holding: Original Petition dismissed; cost of Rs. 4500 to be paid by 09.04.2024; upon payment, the appeal will stand restored. The First Appellate Court shall hear and dispose of the appeal expeditiously within 3 months from receipt of the judgment copy.
Final Disposition: Disposed of; Petition dismissed with conditions as stated (pay Rs. 4500 by 09.04.2024; restoration contingent on payment; expeditious disposal within 3 months).

Parties to the Case

Appellants / Petitioners

Thankmma Pillai Saraswathi Amma
Neelakantan Pillai Sreekantan Nair

Respondents

Manoharan Nair
Appukuttan Nair
Madhavan Pillai Chandrasekharan Nair
Valsala Kumari
Ushakumari
Sivan Kutty

Legal Representation & Advocates

Counsels for Petitioners

• V. V. N. Menon
• N. S. Gopakumar

Counsels for Respondents

• V. Suresh
• G. Sudheer

Case Synopsis & Summary

This is an Original Petition (Article 227) before the Kerala High Court, heard by a Single Judge, challenging a cost of Rs. 4500 imposed by the 1st Additional District Judge for condoning a 452-day delay in filing a restoration petition in an appeal (A.S No. 139/2010) which had been dismissed for default. The petitioners, who were the appellants, contend that the cost is unreasonably onerous and that the delay was not wholly attributable to them; adjournments by the respondent and the petitioners’ absence only on the day of dismissal have to be weighed in. The respondent contends maintainability issues under Varghese Antony v. Fr. Antony Kochuveettil, arguing that challenges to liability or quantum of costs under Order IX Rules 9/13 are to be raised in appeal, not in an Article 227 petition. The court summarises the factual orbit: an appeal filed in 2005 was dismissed in 2010 for default; restoration petitions and subsequent restoration of the appeal occurred with costs, previously reduced on review; a restoration petition after delay of 452 days led to Ext. P9’s Rs. 4500 cost. After considering the submissions, the court dismisses the Original Petition, finds no merit in interference with the cost order, but grants time till 09.04.2024 to pay the Rs. 4500, with restoration of the appeal contingent on payment, and directs expeditious disposal within three months.

Provisions of Law Cited

Order IX Rule 9Order IX Rule 13Article 227 of the Constitution of India

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that the Rs. 4500 cost is unreasonably onerous and that the long delay (452 days) in restoration was not wholly deliberate; adjournments by the respondent and absence only on the day of dismissal should be weighed in; they seek the waiver or reduction of costs, and challenge the constitutional validity of the order under Article 227.

Contentions of Respondents

The respondents advance maintainability objections based on Varghese Antony v. Fr. Antony Kochuveettil, arguing that challenges to cost either liability or quantum under Order IX Rules 9/13 must be raised in appeal, not in a writ petition; they emphasize the delay and argue that the costs were correctly imposed to deter dilatory conduct.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Varghese Antony v. Fr. Antony Kochuveettil	2012 (3) KLT 692	Positive	The court cites and relies on this decision to hold that challenges to liability or quantum of costs under Order IX Rules 9/13 must be raised in an appeal, not in an Original Petition under Article 227, and uses it to support dismissal of the petition on maintainability grounds.

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 1[ST] DAY OF APRIL 2024 / 12TH CHAITHRA, 1946** ## **OP(C) NO. 65 OF 2017** **AGAINST THE JUDGMENT DATED 10.12.2013 IN AS NO.139 OF 2010 OF I** **ADDITIONAL DISTRICT COURT, THIRUVANANTHAPURAM** **PETITIONERS:** - **1 THANKMMA PILLAI SARASWATHI AMMA,AISWARYA NIVAS, VADAKARA DESOM, MARAYAMUTTOM PO, PERUMKADAVILA VILLAGE, NEYYATTINKARA TALUK, PIN 695131** - **2 NEELAKANTAN PILLAI SREEKANTAN NAIR, H/O.SARASWATHI AMMA, RESIDING AT AISWARYA NIVAS, VADAKARA DESOM, MARAYAMUTTOM PO, PERUMKADAVILA VILLAGE, NEYYATTINKARA TALUK, PIN 695131** - **BY ADVS.SRI.VADAKARA V.V.N.MENON** - **SRI.N.S.GOPAKUMAR** ## **RESPONDENTS:** - **1 MANOHARAN NAIR,S/O.KRISHNA PILLAI, MELENAMOTTU THEKKEKARA KRISHNA VILASOM BUNGLOW, VADAKARA DESOM, MARAYAMUTTOM PO, PERUMKADAVILA VILLAGE, NEYYATTINKARA TALUK, PIN 695131** - **2 APPUKUTTAN NAIR,S/O.KRISHNA PILLAI, RESIDING AT MELENAMKOTTU THEKKEKARA KRISHNA VILASOM BUNGLOW, VADAKARA DESOM, PERUMKADAVILA VILLAGE, NEYYATTINKARA TALUK** - **3 MADHAVAN PILLAI CHANDRASEKHARAN NAIR, KULATHATTU PUTHEN VEEDU, MANALLOOR DESOM, NEYYATTINKARA PO, NEYYATTINKARA VILLAGE, NEYYATTINKARA TALUK, PIN 695121** - **4 VALSALA KUMARI,D/O.PANKAJAKSHY AMMA, RESIDING AT KULATHATTU PUTHEN VEEDU, MANALLOOR DESOM, NEYYATTINKARA PO, NEYYATTINKARA VILLAGE, NEYYATTINKARA TALUK, PIN 695121** - **5 USHAKUMARI,MELAMKOTTU THEKKUMARAKAR KRISHNA VILASOM PUTHEN VEEEDU, VADAKARA DESOM, MARAYAMUTTOM PO, PERUMKADAVILA VILLAGE, NEYYATTINKARA TALUK, PIN 695131** - **6 SIVAN KUTTY,H/O.USHAKUMARI, RESIDING AT MELAMKOTTU THEKKUMARAKARA KRISHNA VILASOM PUTHEN VEEDU, VADAKARA DESOM, MARAYAMUTTOM PO, PERUMKADAVILA VILLAGE, NEYYATTINKARA TALUK, PIN 695131** - **BY ADVS. SRI.V.SURESH SRI.G.SUDHEER** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 01.04.2024,** **THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(C). No.65 OF 2017 . . 2 . . ## **J U D G M E N T** ## _**Dated this the 1[st] day of April, 2024**_ **The petitioners herein are the appellants in A.S No. 139/2010 of the 1[st] Additional District Court, Thiruvanathapuram. The solitary issue in this Original Petition is with regard to award of cost of Rs.4500/- imposed by the learned District Judge for condoning the delay of 452 days in filing Ext.P1 restoration application. The petitioners are aggrieved by Exts. P9 and P10 orders of the learned District Judge. Ext.P9 order allowed Ext.P2 application to condone the delay in filing Ext.P1 restoration petition, on payment of cost as referred above. Seeking review of Ext.P9 order, so as to do away with the costs, the petitioners preferred Ext.P6 application. Vide Ext.P7, a stay of Ext.P9 was also sought** O.P.(C). No.65 OF 2017 **==> picture [39 x 10] intentionally omitted <==** **for. By Ext.P10 common order, Exts. P6 and P7 applications were dismissed.** **2. Heard Sri. Vadakara V.V.N Menon, learned counsel for the petitioners and Sri. V. Suresh, learned counsel for the third respondent.** **3. The counsel for the petitioners contends that the cost of Rs.4500/- imposed by the learned District Judge is unreasonably onerous and the same has to be set aside. Learned counsel would argue that there were several instances where the appeal was adjourned by the respondent herein and that the petitioners were absent only on the day on which the appeal was dismissed for default. In such circumstances the cost of Rs.4500/- imposed is unreasonably high, is the submission.** **4. Learned counsel for the third respondent** O.P.(C). No.65 OF 2017 . . 4 . . **challenged the maintainability of the Original Petition in the light of a decision of this Court in Varghese Antony v. Fr. Antony Kochuveettil [2012 (3) KLT 692], wherein it was held that a challenge to liability to pay cost or its quantum while allowing applications under Order IX Rule 9 or 13 can be made in an appeal only and not by Original Petition under Article 227. On this ground alone, the above Original Petition is not maintainable and is liable to dismissed, is the contention of the respondent. On facts, learned counsel would point out that cost was imposed when the appeal was dismissed for default for the second time and restoration was allowed.** **5. Having heard the learned counsel for both the parties, this court finds little merit in this Original Petition. The essential facts to be noted are as follows:** O.P.(C). No.65 OF 2017 . . 5 . . **An appeal of the year 2005 preferred by the petitioners was dismissed for default on 6.11.2010. An application to restore the appeal was filed, which was also dismissed for default. An application to restore the restoration petition was allowed and consequently the appeal was also restored on cost of Rs.3000/-, which was reduced to Rs.1000/- on an application for review preferred by the petitioners. The appeal was however again dismissed for default of the petitioners. Again, a restoration petition was filed with a delay of 452 days. By Ext.P9 order, the restoration sought for was allowed, but on cost of Rs.4500/-. The cost component is under challenge herein.** **6. Even on merits, this court finds no error or infirmity in the impugned orders and the cost imposed by the learned District Judge is nothing** O.P.(C). No.65 OF 2017 **==> picture [39 x 10] intentionally omitted <==** **but reasonable, taking into account the dilatory tactics adopted by the petitioners, as revealed from the above narrated facts. Besides, there was a delay of more than a year, precisely 452 days, that too, for filing a restoration application. This court finds no reason to interfere exercising the powers under Article 227 of the Constitution.** **7. The upshot of the above discussion is that this Original Petition is devoid of any merit or substance and the same will stand dismissed.** **8. The petitioners are granted time till 09.04.2024 to pay the cost of Rs.4500/- as directed in Ext.P9. It is clarified that under no circumstance, the time prescribed for payment of cost be extended. Once the cost is paid, the appeal will stand restored. The first appellate** O.P.(C). No.65 OF 2017 **==> picture [39 x 10] intentionally omitted <==** **court shall hear and dispose of the appeal expeditiously, at any rate within a period of 3 months from the date of receipt of a copy of this judgment, which period is fixed also taking into account the ensuing summer recess for courts.** **Sd/-** **C.JAYACHANDRAN, JUDGE** ## **vdv** |**PETITIONER EXHIBITS**|| |---|---| |**EXHIBIT P1**|**TRUE PHOTOCOPY OF THE RESTORATION PETITION**| ||**DATED 04.04.2015 (IA NO. 961/2015) FILED BY**| ||**THE PETITIONERS BEFORE THE 1ST ADDL. DISTRICT**| ||**COURT, TRIVANDRUM FOR READMITTING THE**| ||**DISMISSED AS.NO. 139/2010 FOR DAFAULT**| |**EXHIBIT P2**|**TRUE PHOTOCOPY OF THE DELAY PETITION WITH**| ||**AFFIDAVIT DATED 04.04.2015 (IA.NO. 962/2015)**| ||**FILED BY HTE PETITIONERS IN THE SAID APPEAL**| |**EXHIBIT P3**|**TRUE COPY OF THE COUNTER AFFIDVIT DATED**| ||**04.01.2015 FILED BY THE 3RD AND 4TH**| ||**RESPONDENTS AGAINST THE SAID IA.NO. 962/2015**| |**EXHIBIT P4**|**TRUE PHOTOCOPY OF THE CERTIFIED COPY OF THE**| ||**JUDGEMENT DATED 10.12.2013 PASSED BY THE 1ST**| ||**ADDL. DISTRICT COURT IN AS.NO. 139/2010**| ||**DISMISSING THE SAME FOR DEFAULT**| |**EXHIBIT P5**|**TRUE PHOTOCOPY OF THE B.DAIRY IN AS.NO.**| ||**1/2005 OF THE SUB COURT, NEYYATTINKARA BEFORE**| ||**TRANSFERRING THE SAME TO THE TRANSFERE 1ST**| ||**ADDL. DISTRICT COURT, TRIVANDRUM AND**| ||**THEREAFTER OF THE TRANSFEREE COURT IN**| ||**RENUMBERED AS.NO. 139/2010 W.E.F 22/.09.2010**| ||**TO 10.12.2013**| |**EXHIBIT P6**|**TRUE PHOTOCOPY OF THE REVIEW PETITIOEN DATED**| ||**18.06.2016 (IA.NO. 1748/2016) FILED BY THE**| ||**PETITIONERS IN THE SAID APPEAL**| |**EXHIBIT P7**|**TRUE COPY OF THE STAY PETITION WITH AFFIDAVIT**| ||**DATED 18.06.2016 (IA.NO. 1749/2016) FILED BY**| ||**THE PETITIONERS IN THE SAID REVIEW PETITION**| |**EXHIBIT P8**|**TRUE PHOTOCOPY OF THE COUNTER AFFIDVIT DATED**| ||**17.06.2016 FILED BY THE 3RD RESPONDENT**| ||**AGAIINST IA.NO. 1748/2016 (REVIEW PETITION)**| |**EXHIBIT P9**|**TRUE PHOTOCOPY OF THE CERTIFIED COPY OF THE**| ||**ORDER DATED 16.06.2016 IN IA.NO. 962/2015**| ||**PASSED BY THE 1ST ADDL. DISTRICT COURT,**| ||**TRIVANDRUM**| |**EXHIBIT P19**|**TRUE PHOTOCOPY OF THE CERTIFIED COPY OF THE**| ||**COMMON ORDER DATED 06.08.2016 PASSED BY THE**| ||**1ADDL. DISTRICT COURT, TRIVANDRUM IN IA.NO.**| ||**1748 & 1749/2016**|