Kerala High Court
St.Mary'S Jacobite Syrian Orthodox ... vs Dr.Abraham Varghese on 30 September, 2013
Author: N.K.Balakrishnan
Bench: N.K.Balakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN
MONDAY,THE 30TH DAY OF SEPTEMBER 2013/8TH ASWINA, 1935
OP(C).No. 3324 of 2013 (O)
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IN IA. 3303/13 IN OS 32/2005 OF 1ST ADDITIONAL DISTRICT COURT, ERNAKULAM
PETITIONER(S)/PETITIONER:
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1. ST.MARY'S JACOBITE SYRIAN ORTHODOX CHURCH
THODUPUZHA, THODUPUZHA VILLAGE, THODUPUZHA TALUK
REP BY ITS TRUSTEES(1)M C SHIBU(2)BENNY ELIAS
2. M.C.SHIBU, S/O.CHACKO, MAMALAKKUNNATH HOUSE, OLAMATTAM KARA
THODUPUZHA VILLAGE, THODUPUZHA TALUK
3. BENNY ELIAS, S/O.ELIAS, APPOZHITTU HOUSE, MUTTAM KARA
MUTTAM , MUTTAM VILLAGE, THODUPUZHA TALUK
4. KURIAKOSE MATHAI, S/O.MATHAI, KUZHINILATHU PUTHENPURACKL HOUSE
KUNNATHPARA KARA, MANACADU VILLAGE, THODUPUZHA TALUK
BY ADV. SRI.K.J.KURIACHAN
RESPONDENT(S)/RESPONDENTS:
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1. DR.ABRAHAM VARGHESE, AGED 66 YEARS
S/O.VARGHESE, KULLRANKAL HOUSE, THODUPUZHA KARA
THODUPUZHA VILLAGE, THODUPUZHA TALUK
2. P C DAVID, AGED 50 YEARS, S/O.CHERU, PULIKKOTTIL HOUSE
KUNNATHUPARA MANACADU VILLAGE, THODUPUZHA TALUK
3. AP VARGHESE, AGED 60 YEARS, S/O.PAULOSE, R/A.ALAMKULAM HOUSE,
VENAGALLOOR KARA, KUMARAMANGALAM VILLAGE, THODUPUZHA
4. M J THOMAS, AGED 64 YEARS, S/O.JOHN, MATTATHIL HOUSE,
THODUPUZHA KARA, THODUPUZHA VILLAGE, THODUPUZHA TALUK
5. AV THOMAS, AGED 65 YEARS, S/O.VARGHESE, KYKARAKUDIYIL HOUSE,
KANJIRAMATTOM, THODUPUZHA VILLAGE, THODUPUZHA TALUK
6. REV FR. P.C CHERIAN, AGED 50 YEARS
S/O.CHACKO, PALAKKATTUMALAYIL HOUSE, KEEZHILLAM KARA
RAYAMANGALAM VILLAGE, KUNNATHUNADU TALUK
7. REV.FR.PRINCE JOHN,S/O.FR.JOHN,, AGED 35 YEARS, KALAPURACKAL
HOUSE, KINGINIMATAM KARA, EZHUKKARANADU VILLAGE
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 30-09-2013, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C).No. 3324 of 2013 (O)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1:- TRUE COPY OF THE PLAINT IN OS NO 32/2005 OF IST
ADDITIONAL DISTRICT COURT, ERNAKULAM
EXHIBIT P2:- TRUE COPY OF THE APPLICATION BY IA NO 3303/2013 FILED
BY THE PLAINTIFF IN OS NO 32/2005
EXHIBIT P3:- TRUE COPY OF THE COUNTER AFFIDAVIT IN IA NO 3303/2013 IN
OS NO 32/2005
EXHIBIT P4:- THE TRUE COPY OF THE ORDER PASSED IN IA NO 3303/2013
DTD 13/8/2013
RESPONDENT(S)' EXHIBITS
--------------------------------------- NIL
//True copy //
PA to Judge
das
N.K.BALAKRISHNAN, J.
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O.P.(C). No. 3324 of 2013
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Dated this the 30th day of September, 2013
JUDGMENT
This petition is filed by D1, D4, D5 and D6 in OS 32/2005 pending before the Ist Additional District Court, Ernakulam. The suit was filed obtaining leave under Section 92 of CPC. It is stated that after the trial of the suit a petition was filed under Order I Rule 8 and Sec.151 of CPC, seeking permission to effect publication afresh. That petition was opposed by the petitioners herein. However, the learned Additional District Judge allowed that petition. Challenging that order this petition has been filed.
2. The learned counsel for the petitioner submits that the trial was already over and the arguments were addressed by both sides. When the matter was posted for reply arguments, this petition was filed. According to the petitioner, this is a mischievous petition filed after conclusion of the trial of the suit to cure the defect in the frame of the suit pointed out by the petitioners and so it should not be allowed.
O.P.(C).No.3324/2013 2
3. The learned senior counsel appearing for the respondents strongly opposed the submission. It is submitted that there was no fault on the part of the plaintiffs since a proper petition was filed by them, seeking leave of the court under Section 92 of CPC, along with the plaint and after the procedure prescribed under Order 1 Rule 8 was complied with leave was granted. A draft publication was produced at that time. That publication was approved by the court and thus the publication was effected. If there had been any defect in the draft publication and had it been pointed out, it would have been cured then and there. It is submitted that if it is not done now ultimately if the court (either by the trial court of by the lower court) finds that the publication effected under Order 1 Rule 8 CPC was not proper the suit may have to be remanded and if so the entire procedure may have to be repeated. It is to avoid the delay, the present petition was filed to cure the defects. There was publication earlier also as contemplated under Order 1 Rule 8 of CPC, but only because of the defect pointed out a petition had to be filed again.
O.P.(C).No.3324/2013 3
4. Be that as it may, pursuant to the impugned order passed by the trial court on 13/8/2013, the draft publication was again produced. It was approved. The publication was effected. It is stated that pursuant to the publication some parties had entered appearance also. Therefore, it is not proper for this court to interfere at this stage by invoking the jurisdiction under Article 227 of the Constitution of India.
Hence, this petition is dismissed but without prejudice to the contentions taken by the petitioners herein including the plea regarding the correctness or validity of the publication effected or the procedure followed under Order 1 Rule 8 of CPC.
Sd/-
N.K.BALAKRISHNAN, JUDGE das