Kerala High Court
Thayyullathil Nasar vs Meethale Marunnoli Abdulla on 21 November, 2014
Bench: V.Chitambaresh, K.Harilal
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
&
THE HONOURABLE MR.JUSTICE K.HARILAL
FRIDAY,THE 29TH DAY OF JULY 2016/7TH SRAVANA, 1938
FAO.No. 42 of 2015 ()
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AGAINST THE ORDER IN R.P.I.A. NOS. 833/2014 & 834/2014 IN
OS NO. 161/2012 of SUB COURT, VADAKARA DATED 21.11.2014
APPELLANT/PETITIONER/DEFENDANT:
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THAYYULLATHIL NASAR, 40 YEARS,
S/O.AMMED, THAYYULLATHIL HOUSE,
EDACHERY AMSOM DESOM, EDACHERY (PO),
VATAKARA TALUK, KOZHIKODE DISTRICT.
BY ADV. SMT.K.DEEPA(PAYYANUR)
RESPONDENT/RESPONDENT/PLAINTIFF:
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MEETHALE MARUNNOLI ABDULLA, 43 YEARS,
S/O.MOOSA, MEETHALE MARUNNOLI HOUSE,
PURAMERI VILLAGE, MUTHUVADATHUR DESOM,
P.O.MUTHUVADATHUR, VATAKARA TALUK,
KOZHIKODE DISTRICT,PIN 673 503
BY ADV. SRI.U.K.DEVIDAS
BY ADV. SRI.K.K.ANILRAJ
THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON
29-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
V. CHITAMBARESH & K. HARILAL, JJ.
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F.A.O. NO. 42 OF 2015
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Dated this the 29th day of July, 2016
JUDGMENT
Chitambaresh, J.
The order refusing to set aside the ex-parte decree after condoning delay in a suit for specific performance is impugned. The specific case of the petitioner/defendant is that he had to look after his aged mother who was ailing and could not therefore give appropriate instructions to his counsel. The counsel reported no instructions and accordingly the suit was decreed ex-parte.
2. We find that the stake involved is high and the total sale consideration recited in the agreement is `11 lakhs. The judgment decreeing the suit ex-parte does not at all reflect the exercise of discretion under Section 20 of the Specific Relief Act, 1963.
3. It is trite law that the court is not bound to grant the relief of specific performance. The exercise of discretion under Section 20 of the Specific Relief Act, 1963 is an essential exercise. An Adjudication on merits would be advisable in the circumstances and an ex-parte decree is not desirable.
4. It is not proper to dismiss an application to condone delay merely for the reason that no medical certificate has been 2 FAO No. 42/2015 produced. The delay in the instant case is not inordinate and is only 244 days in filing the application to set aside the ex-parte decree. There is ofcourse some laches on the part of the petitioner which can be condoned on payment of costs.
5. The order is set aside and I.A. Nos. 833/2014 and 834/2014 in O.S. No. 161/2012 on the file of the Subordinate Judge of Vatakara is allowed. This is subject to the condition that the appellant pays a sum of `25,000/- (Rupees Twenty five thousand only) as costs to the counsel for the respondent within three weeks. The failure to pay the costs as stipulated will entail in the order of the court below being affirmed.
6. It is reported that proceedings for violation of injunction are pending. Nothing said in this judgment will affect the proceedings pending in the court below. The parties to the suit shall appear in the court below on 16.08.2016.
The Appeal is disposed of.
V. CHITAMBARESH JUDGE K. HARILAL JUDGE ncd