Kerala High Court
Shaibu vs Suresh on 22 June, 2020
Author: B.Sudheendra Kumar
Bench: B.Sudheendra Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR
MONDAY, THE 22ND DAY OF JUNE 2020 / 1ST ASHADHA, 1942
OP(C).No.2627 OF 2019
AGAINST THE ORDER/JUDGMENT IN OS 474/2010 OF ADDITIONAL SUB COURT,
PALAKKAD
AGAINST THE ORDER/JUDGMENT IN OS 280/1999 OF MUNSIFF COURT,
CHITTUR
PETITIONER:
SHAIBU
S/O. BALAN, AGED 44 YEARS,
LAKSHMI NIVAS, KODUVAYOOR AMSOM DESOM,
CHITTUR TALUK, PALAKKAD DISTRICT,
REP.BY POWER OF ATTORNEY HOLDER ,
SHIJU, S/O. BALAN, AGED 39 YEARS,
RESIDING AT LAKSHMI NIVAS,
KODUVAYOOR AMSOM DESOM,
CHITTUR TALUK, PALAKKAD DISTRICT
BY ADV. SRI.RAJESH SIVARAMANKUTTY
RESPONDENTS:
1 SURESH
AGED 55 YEARS, S/O. KITTA,
RESIDING AT PEECHIYODE,
KODUVAYOOR AMSOM DESOM,
CHITTUR TALUK, PALAKKAD DISTRICT,
PIN-678 501
2 RAJESWARI,
AGED 61 YEARS, W/O.BALAN,
RESIDING AT LAKSHMI NIVAS,
KODUVAYOOR AMSOM DESOM, CHITTUR TALUK,
PALAKKAD DISTRICT,PIN-678 501
R1 BY ADV. SRI.SAJAN VARGHEESE K.
R1 BY ADV. SRI.LIJU. M.P
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 22.06.2020, ALONG
WITH OP(C).2775/2019, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
-2-
OP(C).Nos.2627 & 2775 OF 2019
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR
MONDAY, THE 22ND DAY OF JUNE 2020 / 1ST ASHADHA, 1942
OP(C).No.2775 OF 2019
AGAINST THE ORDER/JUDGMENT IN CMA 74/2019 DATED 07-08-2019
OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - V, PALAKKAD
AGAINST THE ORDER/JUDGMENT IN OS 474/2010 OF ADDITIONAL SUB
COURT, PALAKKAD
PETITIONERS:
SURESH K.
AGED 53 YEARS
S/O.KITTA, PEECHIYODE HOUSE,
KODUVAYUR AMSOM DESOM AND POST,
CHITTUR TALUK, PALAKKAD DISTRICT.
BY ADVS.
SRI.SAJAN VARGHEESE K.
SRI.LIJU. M.P
SRI.JOPHY POTHEN KANDANKARY
RESPONDENT:
C.K. SHAIBU,
S/O.BALAN, AGED 45,
LAKSHMI NIVAS, SANTHIPURAM,
KODUVAYUR DESOM AND POST, CHITTUR TALUK,
PALAKKAD DISTRICT, REP. BY THE POWER OF
ATTORNEY HOLDER C.B.SHIJU, AGED 40,
LAKSHMI NIVAS, SANTHIPURAM,
KODUVAYUR DESOM AND POST, CHITTUR TALUK,
PALAKKAD DISTRICT.
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON
22.06.2020, ALONG WITH OP(C).2627/2019, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
-3-
OP(C).Nos.2627 & 2775 OF 2019
JUDGMENT
The petitioner in O.P.(C).No.2627/2019 is the plaintiff and the petitioner in O.P.(C).No.2775/2019 is the defendant in O.S.No.474/2010 on the files of the Additional Sub Court, Palakkad. The suit was dismissed on 02.02.2019. Thereafter, the plaintiff filed I.A.No.662/2019 under Order 9 Rule 9 CPC for restoring the suit, which was dismissed for default. The trial court dismissed the said application, against which appeal was filed by the plaintiff. The appellate court as per judgment in CMA No.74/2019 set aside the order passed by the trial court and allowed I.A.No.662/2019. Accordingly, the suit was restored. An interlocutory application was filed by the plaintiff along with O.S.No.474/2010 as I.A.No.2064/2010. The trial court granted an interim order of status quo in the execution petition -4- OP(C).Nos.2627 & 2775 OF 2019 in O.S.No.280/1999. After restoration of the suit, the plaintiff filed E.A.Nos.118/2019 and 119/2019 before the execution court to stay the delivery. The court below as per Ext.P6 common order, dismissed the said application stating that even though the stay order was there in the suit initially, the said order was not revived by the court when the suit was restored back to the file and hence the stay order lapsed on the date of dismissal of O.S.No.474/2010 on default. Aggrieved by the said order, O.P.(C).No.2667/2019 was filed and aggrieved by Ext.P7 order of the appellate court in CMA No.74/2019, O.P.(C).No.2775/2019 was filed.
2. Heard.
3. The plaintiff filed O.S.No.474/2010 inter alia praying for setting aside the decree and judgment in O.S.No.280/1999, contending that even though the plaintiff purchased the property involved in -5- OP(C).Nos.2627 & 2775 OF 2019 O.S.No.280/1999 prior to the filing of the said suit, the plaintiff was not made as a party to the suit even though the vendor of the plaintiff was made as a party. O.S.No.280/1999 was filed after the sale of the property in the name of the plaintiff in O.S.No.474/2010. O.S.No.474/2010 was dismissed for default on 02.02.2019. The application filed by the plaintiff under Order 9 Rule 9 CPC was dismissed by the trial court, against which an appeal was filed. The appellate court as per Ext.P9 judgment, allowed the application filed under Order 9 Rule 9 CPC and restored the suit to the file.
4. The first question to be considered is as to whether Ext.P9 judgment calls for any interference by this Court. The learned counsel for the defendant in O.S.No.474/2010 has argued that since the suit was earlier dismissed for default, the finding by the trial -6- OP(C).Nos.2627 & 2775 OF 2019 court, that the intention of the plaintiff was only to procrastinate the case, ought not have been disturbed by the appellate court. It is settled law that the dismissal of the suit for default on the earlier occasion and its restoration by the court cannot be taken as a ground to reject the application filed for the restoration of the suit when the suit was dismissed on the subsequent occasion, as the earlier application for restoration was allowed only because the court was convinced that there was sufficient cause to restore the suit at that time. Therefore, the argument in this regard by the learned counsel for the defendant cannot be accepted. It appears that the plaintiff's counsel relinquished the vakkalath on 17.01.2019. The counsel had given 'No Objection Certificate' also on 17.01.2019. The plaintiff engaged a new counsel on 31.01.2019. The new counsel filed vakkalath on 01.02.2019. The -7- OP(C).Nos.2627 & 2775 OF 2019 case came up in the list on 02.02.2019. On that day, the plaintiff filed two applications before the trial court. One application was filed for remitting the commission report, stating that it was defective on many reasons. The other application was to remove the case from the list, stating that his counsel would require time to study the case. The trial court posted the application for remitting the commission report for consideration along with the suit, after recording the evidence. Accordingly, the application for removal of the case from the list was dismissed and the plaintiff was called upon to adduce evidence on the same day. The plaintiff was not ready to adduce evidence which resulted in the dismissal of the suit on the very same day. Thereafter, the plaintiff filed I.A.No.662/2019. He mounted the box and gave evidence. However, the trial court dismissed the application. The appellate court observed that the trial -8- OP(C).Nos.2627 & 2775 OF 2019 court ought to have granted short adjournment so as to give a breathing time for the new counsel to get ready for the trial. The appellate court further observed that atleast an adjournment for one week ought to have been granted by the trial court. For the said reasons, the dismissal of the suit on the listed day itself without granting an adjournment for one week had really caused injustice to the plaintiff, observed by the appellate court. It appears that the plaintiff had filed application promptly. The reasons stated by the appellate court appear to be just and reasonable. Having gone through the relevant inputs, I do not find any reason to hold that the plaintiff was grossly negligent in this regard. Having gone through the judgment of the appellate court, I find no reason to interfere with the judgment of the appellate court in CMA No.74/2019.
-9-OP(C).Nos.2627 & 2775 OF 2019
5. Now, the question to be considered is as to whether restoration of O.S.No.474/2010 would automatically lead to restoration of I.A.No.2064/2010. The Apex Court in Vareed Jacob v. Sosamma Geevarghese (AIR 2004 SC 3992) held that interlocutory orders, which had been passed before the dismissal of the suit would stand revived along with the suit when the dismissal is set aside and the suit is restored unless the Court expressly or by implication excludes the operation of interlocutory orders passed during the period between the dismissal of the suit and the restoration.
6. In this case, admittedly, no specific order was passed by the court on I.A.No.2064/2010 at any time after granting an interim order on 13.07.2010, which was the date of filing O.S.No.474/2010. Therefore, there can be no doubt that the order of status quo -10- OP(C).Nos.2627 & 2775 OF 2019 passed on 13.07.2010 in I.A.No.2064/2010 stood revived when the suit was restored. In view of the above, the finding by the execution court in E.A.No.118/2019 and 119/2019 cannot be said to be legal and correct and consequently, the same cannot be sustained.
In the result, O.P.(C).No.2775/2019 stands dismissed and O.P.No.2627/2019 stands allowed and Ext.P6 common order dated 1.10.2019 in E.A.No.118/2019 and E.A.No.119/2019 stands set aside. E.A.No.118/2019 and E.A.No.119/2019 stand allowed.
Sd/-
B.SUDHEENDRA KUMAR JUDGE STK -11- OP(C).Nos.2627 & 2775 OF 2019 APPENDIX OF OP(C) 2627/2019 PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF POWER OF ATTORNEY DATED 9.1.2008 EXECUTED BY SHAIBU IN FAVOUR O SHIJU EXHIBIT P2 TRUE COPY OF THE DECREE IN O.S.NO.280/1999 DATED 31.3.2006 PASSED BY THE MUNSIFF COURT, CHITTUR EXHIBIT P3 TRUE COPY OF THE PLAINT IN OS NO.474/202 FILED BY THE PETITIONER AGAINST THE 1ST RESPONDENT DATED 12.7.2010 BEFORE THE SUB COURT, PALAKKAD EXHIBIT P4 TRUE COPY OF THE PETITION AND AFFIDAVIT IN I.A.NO.2064/2010 IN O.S.NO.474/1010 FILED BY THE PETITIONER AGAINST THE 1ST RESPONDENT EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED
7.8.2019 IN CMA NO.74/2019 PASSED BY THE ADDITIONAL DISTRICT JUDGE-V, PALAKKAD EXHIBIT P6 CERTIFIED COPY OF THE ORDER DATED 1.10.2019 IN E.A.NO.118/2019 AND E.A.NO.119/2019 IN E.A.NO.361/2010 IN E.P.NO.290/2009 IN O.S.N.280/1999 PASSED BY THE MUNSIFF COURT, CHITTUR RESPONDENT'S EXHIBITS: NIL -12- OP(C).Nos.2627 & 2775 OF 2019 APPENDIX OF OP(C) 2775/2019 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE DEED NO.802/1991 ON THE FILE OF SRO, KODUVAYUR.
EXHIBIT P2 TRUE COPY OF THE DEED NO.1119/1991 ON THE FILE OF SRO, KODUVAYUR.
EXHIBIT P3 TRUE COPY OF THE DEED NO.409/1999 ON THE FILE OF SRO, KODUVAYUR.
EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 31.3.2006 PASSED IN O.S.NO.280/1999 ON THE FILE OF THE MUNSIFF'S COURT, CHITTUR.
EXHIBIT P5 TRUE COPY OF THE PLAINT FILED IN OS.NO.474/2010 ON THE FILE OF ADDITIONAL SUBORDINATE JUDGE'S COURT, PALAKKAD.
EXHIBIT P6 TRUE COPY OF THE WRITTEN STATEMENT FILED IN EXHIBIT P5 SUIT.
EXHIBIT P7 TRUE COPY OF THE ORDER DATED 3.2.2018 PASSED IN IA.NO.2996/2017 ON THE FILE OF ADDITIONAL SUBORDINATE JUDGE'S COURT, PALAKKAD.
EXHIBIT P8 TRUE COPY OF THE ORDER DATED 12.7.2019 PASSED IN IA.NO.662/2019 ON THE FILE OF ADDITIONAL SUBORDINATE JUDGE'S COURT, PALAKKAD.
EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 7.8.2019 PASSED IN CMA NO.74/2019 ON THE FILE OF ADDITIONAL DISTRICT JUDGE-V, PALAKKAD.