P.K. KuriaKose v. Patel Real Estate Developers (P) Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 8[TH] DAY OF MARCH 2023 / 17TH PHALGUNA, 1944 ``` ``` OP(C) NO. 1392 OF 2019 ``` ## **`PETITIONER/S:`** ``` P.K. KURIAKOSE, AGED 50 YEARS S/O.KURIAKOSE, POZHEMADOM HOUSE, VAIKOM KARA, NADUVILE VILLAGE (PRESENTLY UDAYANAPURAM), VAIKKOM TALUK, KOTTAYAM DISTRICT-686146. ``` ``` BY ADVS. C.UNNIKRISHNAN (KOLLAM) NIDHI BALACHANDRAN VIJAYKRISHNAN S. MENON ANANDA PADMANABHAN UTHARA A.S MAHESH CHANDRAN VIVEK NAIR P. ``` ## **`RESPONDENT/S:`** ``` M/S PATEL REAL ESTATE DEVELOPERS (P) LTD., REGISTERED OFFICE AT NO.18, CROSS LANE, KALASIPALAYAM NEW EXTENSION, BANGALORE-560002 AND ITS BRANCH OFFICE AT NO.32/2383, 2ND FLOOR, DOOR NO.6280, PALARIVATTOM, KOCHI-682025, REP. BY ITS RESIDENCE DIRECTOR MR.BALAGOPAL VALIPARAMBIL, BHASKARANUNNI, S/O.LATE DR.BHASKARANUNNI GOKULAM, MEC ROAD, THIRUNAKKARA, COCHIN. BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 08.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` O.P.(C)No.1392 of 2019 2 ## **JUDGMENT** The original petition is filed challenging Ext.P8 order passed in IA No.637 of 2018 in O.S.No.452 of 2012 by the Court of the Additional Subordinate Judge, Kottayam. The petitioner is the defendant and the respondent is the plaintiff in the suit. 2. The relevant background facts leading to Ext.P8 order, in a nutshell, are; i) The respondent has filed the above suit against the petitioner for recovery of money. ii) The petitioner was set ex-parte and an exparte decree was passed. iii) The petitioner filed IA No.1341 of 2017(Ext.P2) to set aside the ex-parte decree. The application was opposed by the respondent through Ext.P3 written objection. iv) Unfortunately, Ext.P2 application was dismissed for default. O.P.(C)No.1392 of 2019 3 v) The petitioner filed IA No.637 of 2018(Ext.P4) to restore Ext.P2 application. The said application was also opposed by the respondent through Ext.P5 written objection. vi) The court below, by the impugned Ext.P8 order, dismissed Ext.P4 application. Vii) Ext.P8 is manifestly wrong and unsustainable in law. Hence, the original petition. 3. Heard; Adv.Sri.K.B.Pradeep, the learned Counsel appearing for the petitioner and Adv.Sri.S.Sreekumar, the learned Senior Counsel appearing for the respondent. 4. The short point is, whether there is any illegality in Ext.P8 order. 5. On an analysis of the pleadings and materials on record, it is evident that the petitioner had filed Ext.P2 application within the stipulated time period to set aside the ex-parte decree. 6. Ext.P2 application was dismissed for default on 19.3.2018. Then, the petitioner filed Ext.P4 application to restore Ext.P2 application, without any delay. O.P.(C)No.1392 of 2019 4 ## 7. Yet, the court below, by the impugned Ext.P8 order, dismissed Ext.P4 for the following reasons; “7. Since the Learned Counsel for respondent while challenging the above petition highlighted lack of bonafides even in entertaining I.A.No.1341/2017 and that unless and until there is some prima facie materials presented to invoke jurisdiction under Order 9 Rule 13 CPC, the present petition is also not to be entertained as it affects the very merit of the case and would amount to abuse of process of court at the prejudice of the respondent. In this context, the Learned Counsel for respondent referred the principles discussed in **Parimal v. Veena @ Bharti (2011 KHC 4117)** . Even though liberal approach was intended to be taken in searching for availability of a sufficient cause, test to be applied to distinguish a genuine and honest litigant from others on being considered, the very reason highlighted was required to be analysed to see whether it could be considered a genuine reason beyond the control of the party and that the resultant action was not attributable or the party could be blamed for it. By keeping in mind the said rigor in applying the standards of ascertaining the sufficient cause, it is very much germane to have a look into the past history of the proceedings. That being visualised, it could be seen that the very affidavit filed on record is not in tune with the proceedings and that the element of malafides is seen governing the modus operandi even in the matter of filing the present petition. In this respect, the very conduct of petitioner taking benefit of legal provisions in presenting the O.P.(C)No.1392 of 2019 5 above petition at the last date and that to in the reopening date after summer vacation, the oblique motive is manifest. All these aspects could have been duly explained if a petition of the present nature could have been filed within a reasonable time on noticing the date of dismissal of IA No.1341/2017 on 24.3.2018. Therefore there is noting to disbelieve the apprehension highlighted by the respondent that the present petition is lacking bonafides and that it was a purposely motivated one for which the petitioner is accountable for inconvenience caused to the respondent as well, finding this point against the petitioner.” 8. A reading of the above order reveals that the court below has taken into consideration the antecedents of the petitioner, for rejecting Ext.P4 application. 9. It is trite, while considering an application for restoration or to set aside an ex-parte order/decree, the courts are not supposed to look into the antecedents of the parties, but only ascertain whether the party has offered sufficient cause to set aside that particular order. 10. I find the approach of the court below to be hyper-technical and pedantic. It is well settled that when O.P.(C)No.1392 of 2019 6 substantial justice is pitted against technical consideration, the former overrides the latter. Furthermore, always a case is to be decided on its merits rather than on default. 11. On a conspectus of the pleadings and materials on record, the well settled principles of law and the findings rendered above, I am of the definite view that the court below has overstepped its powers of authority by passing Ext.P8 order, which warrants interference by this Court under Article 227 of the Constitution of India. Resultantly, I allow the original petition as follows: i) Ext.P8 order is set aside. ii) Ext.P4 application is allowed. iii) IA No.1341 of 2017 is restored to files. iv) The court below is directed to consider and dispose of IA No.1341 of 2017, in accordance with law, after affording both sides an opportunity of being heard, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a certified copy of the judgment. O.P.(C)No.1392 of 2019 7 vi) Until such time, orders are passed on IA No.1341 of 2017, the execution proceedings pursuant to the ex-parte decree in O.S.No.452 of 2012 shall stand deferred. Sd/- **C.S.DIAS, JUDGE** rkj O.P.(C)No.1392 of 2019 8 ## **`APPENDIX OF OP(C) 1392/2019`** ``` PETITIONER EXHIBITS EXHIBIT P1 ``` ``` A TRUE COPY OF THE PLAINT IN OS NO.452 OF 12 ON THE FILE OF THE SUB COURT, KOTTAYAM DATED 2.8.12. ``` ``` EXHIBIT P2A TRUE COPY OF THE I A NO.1341 OF 17 IN O.S.NO.452 OF 12 ON THE FILE OF THE SUB COURT, KOTTAYAM DATED 1.8.17. EXHIBIT P3A TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT HEREIN TO EXT.P2 DATED 12.12.17. ``` ``` EXHIBIT P4A TRUE COPY OF THE APPLICATION FILED AS I.A.NO.637 OF 18 IN I.A.NO.1341 OF 17 IN O.S.NO.452 OF 12 DATED 21.5.18 ON THE FILE OF THE SUB COURT,KOTTAYAM. ``` ``` EXHIBIT P5A TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT TO EXT.P3 DATED 12.8.18. EXHIBIT P6A TRUE COPY OF THE ORDER PASSED BY THE HON'BLE SUPREME COURT IN SLP NO.14651 OF 2018 DATED 12.7.2018. ``` ``` EXHIBIT P7A TRUE COPY OF THE ORDER PASSED BY THE HON'BLE SUPREME COURT IN MISCELLANEOUS APPLICATION NO. 799 OF 2019 IN SLP NO.14651 OF 2018 DATED 29.4.2019. ``` ``` EXHIBIT P8A TRUE COPY OF THE ORDER PASSED IN I.A.NO.637 OF 18 IN O.S.NO.452 OF 12 AND IN I.A.NO.995 OF 18 IN O.S.NO.6 OF 14 ON THE FILE OF THE SUB COURT, KOTTAYAM DATED 28.3.19. ```