OP(C) NO. 1592 OF 2022
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 25TH DAY OF AUGUST 2022 / 3RD BHADRA, 1944
OP(C) NO. 1592 OF 2022
AGAINST THE ORDER/JUDGMENT IN OS 240/2017 OF II ADDITIONAL
SUB COURT,THRISSUR
PETITIONER/S:
1 KRISHNA DAS,S/O KOCHAPPAN,AGED 70 YEARS,
VEDANILAYAM, PAMBADI WEST P.O, THRISSUR, PIN -
680597
2 VALSALA K.C, W/O KRISHNA DAS, AGED 70 YEARS
VEDANILAYAM,PAMBADI WEST P.O,THRISSUR, PIN - 680597
BY ADVS.
SHRI.M.N.MANMADAN, CGC
A.BALAGOPALAN
A.RAJAGOPALAN
M.N.MANMADAN
M.S.IMTHIYAZ AHAMMED
SOJO J.KALLIDUKIL
P.SEENA
RESPONDENT/S:
PRASANTH
AGED 50 YEARS
S/O RAMACHANDRAN
AGED ABOUT 50 YEARS, CHAKKINGAL HOUSE,
THEJUS, THIRUVILAMALA P.O
KANIYARKODE, THRISSUR 680597, PIN - 680594
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
25.08.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(C) NO. 1592 OF 2022
2
JUDGMENT
Confronted with the order in I.A.No.3/2022 in O.S.No.240/2017 (Ext.P4) of the Court of the Additional Subordinate Judge II, Thrissur, the plaintiffs in the suit have filed this original petition. The defendant in the suit is the respondent.
2. The concise case of the petitioners in the original petition is that: they had filed the suit against the respondent, seeking a decree for realisation of money. The suit is resisted by the respondent. During the pendency of the suit, the petitioners had changed the counsel. The suit was dismissed for default. Immediately, after the new counsel was appointed, an application was moved to restore the suit to file. The earlier counsel had filed I.A.No.937/2019, seeking leave to amend the plaint. That application was closed when the suit was dismissed. The present counsel found that the suit does not disclose full details and the OP(C) NO. 1592 OF 2022 3 factual narrative of the facts. Thus, the petitioners filed Ext.P2 application, seeking leave to amend the plaint. The same was opposed by the respondent through Ext.P3 objection. The court below, by the impugned Ext.P4 order has dismissed Ext.P2. Ext.P4 is erroneous and improper. Hence, the original petition.
3. Heard; Sri.A.Balagopalan, the learned counsel appearing for the petitioners.
4. The point is whether there is any error or illegality in Ext.P4 order passed by the Court below.
5. Admittedly, the suit was filed in the year 2017. The specific contention of the petitioners was that the suit is for realisation of money based on cheques. It is further alleged that there was an oral agreement between the petitioners and the respondent for purchasing a property fixing the total sale consideration for Rs.20,00,000/-. Even though the OP(C) NO. 1592 OF 2022 4 respondent had received an amount of Rs.19,00,000/- towards advance sale consideration, he failed to execute the sale deed, instead he demanded a higher sale price. In repayment of the advance sale consideration, he issued four cheques for an amount of Rs.19,00,000/-. Those cheques were dishonoured. On the basis of the cheques, the suit was filed. The respondent had denied the allegations in the plaint. The issues were formulated as early as on 10.07.2019. Later, as there was no representation for the petitioners, the suit was dismissed for default on 06.11.2019. Later, on 16.07.2021, the suit was restored to file and the case was posted for pre-trial steps as last chance on 17.09.2021. Nevertheless, the suit was adjourned from time to time. Later on 05.07.2022, an application was filed to remove the suit from the list. Much later, the present application was filed seeking leave to amend the plaint. It is evident and undisputed that the earlier application - I.A.No.937/2019 - was OP(C) NO. 1592 OF 2022 5 filed, seeking leave to amend the plaint and that application was allegedly closed when the suit was dismissed. Instead of seeking for restoration of that application, the petitioners have filed a fresh application. It is trite, that the principles of resjudicata are applicable to proceedings. The Court below, after comparing the dismissed application, the plaint and the present application, found that the petitioners are attempting to take inconsistent stands and set up a new case. In the above factual matrix, the Court below dismissed Ext.P2 application by the impugned order. I do not find any error or illegality in Ext.P4 order warranting interference by this Court under Article 227 of the Constitution of India. Without prejudice to the right of the petitioners to work out their remedies in accordance with law, the original petition is dismissed.
Sd/-
C.S.DIAS, JUDGE rkc/25.08.22 OP(C) NO. 1592 OF 2022 6 APPENDIX OF OP(C) 1592/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE PLAINT IN O.S NO 240 OF 2017 ExhibitP2 THE TRUE COPY OF I.A. 3 /2022 FILED IN O.S NO 240 OF 2017.
ExhibitP3 THE OBJECTION FILED BY THE RESPONDENT IN I.A. 3/2022 IN O.S NO 240 OF 2017.
ExhibitP4 THE CARBON COPY OF ORDER DATED 8/8/2022 PASSED BY THE SECOND ADDITIONAL SUB COURT THRISSUR IN I.A. 3/2022 IN O.S NO 240 OF 2017.