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Kerala High Court
Nisar vs Treesa John Joseph on 21 May, 2024
Author: Kauser Edappagath
Bench: Kauser Edappagath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
OP(C) NO. 2339 OF 2023
ORDER IN IA 297/21 & 296/21 IN OS NO.37 OF 2012 OF PRINCIPAL
SUB COURT KOLLAM
PETITIONER/RESPONDENT/PLAINTIFF:
NISAR, AGED 47 YEARS
S/O KHALID KUTTY, RESIDING AT RAJEENA MANZIL,
PULIYOOR VANCHI VADAKKU MURI, THODIYOOR VILLAGE,
HOUSE NO. TP 455, WARD NO. II, KARUNAGAPPALLY
TALUK, KOLLAM DISTRICT, PIN - 690523
BY ADVS.A.JANI(KOLLAM)
NISA FASIL(KOLLAM)
RESPONDENTS/PETITIONER-1ST DEFENDANT & 2ND RESPONDENT-2ND
DEFENDANT:
1 TREESA JOHN JOSEPH, AGED 57 YEARS, W/O JOSEPH
BOSCO, RESIDING AT MANUEL NIVAS, MEENATHU CHERRY,
KAVANADU P.O, KOLLAM DISTRICT, PIN - 691003
2 MURALEE MANOHAR,AGED 60 YEARS, S/O GOPAL RAO,
RESIDING AT PUTHEN VEEDU, KUREEPPUZHA CHERRY,
KAVANADU P.O, SAKTHIKULANGARA VILLAGE, KOLLAM
DISTRICT, PIN - 691003
BY ADV G.VIDYA
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
21.05.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(C).No.2339/2023
-:2:-
JUDGMENT
Exts. P20 and P21 orders passed by the Principal Sub Court, Kollam (for short the trial court) are under challenge in this original petition.
2. The petitioner is the plaintiff in O.S.No.37/2012. The suit was one for specific performance of the contract originally filed against the 1st defendant. The property originally belonged to the 1st defendant. The plaintiff and the 1 st defendant entered into an agreement whereby the plaintiff agreed to purchase the property from the 1st defendant. During the pendency of the suit, it was noticed that the 1 st defendant had already alienated the property to the 2nd defendant and accordingly, the 2nd defendant was impleaded in the suit. An additional prayer was incorporated by way of amendment to declare the transaction between the 1st defendant and the 2nd defendant as null and void. The defendants are the respondents in this original petition. Both the defendant remained ex-parte and an ex-parte decree was passed. The 1st defendant filed Exts. P4 and P6 applications to set aside the ex-parte decree and also to condone the delay of 1372 days in filing the petition to set aside the ex-parte decree. O.P.(C).No.2339/2023 -:3:- The trial court as per Exts.P20 and P21 orders allowed both applications on payment of cost of ₹10,000/-. Those orders are under challenge in this original petition.
3. I have heard both sides.
It is evident from the impugned orders that no summons was served to the 1st defendant. The paper publication was taken out and the 1st defendant was set ex-parte. Hence, I am of the view that the trial court has properly exercised the discretion to set aside the ex-parte decree and also to condone the delay. I find no illegality or impropriety in the impugned orders. However, it is made clear that the decree as against the 1 st defendant alone stands set aside, inasmuch as the 2nd defendant has not so far filed an application to set aside the ex-parte decree. The original petition is dismissed with the above observation.
Sd/-
DR. KAUSER EDAPPAGATH JUDGE kp O.P.(C).No.2339/2023 -:4:- APPENDIX OF OP(C) 2339/2023 PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE AMENDED PLAINT IN O.S. NO. 37 OF 2012 PREFERRED BEFORE PRINCIPAL SUB COURT, KOLLAM Exhibit P2 A TRUE COPY OF THE JUDGMENT IN O.S. NO.
37 OF 2012 BY THE PRINCIPAL SUB COURT, KOLLAM ON 31/01/2018 Exhibit P3 A TRUE COPY OF THE DECREE IN O.S. NO. 37 OF 2012 OF THE PRINCIPAL SUB COURT, KOLLAM DATED 31/01/2018 Exhibit P4 A TRUE COPY OF PETITION IN IA NO 296/2021 IN IN O.S. NO. 37 OF 2012 BY THE PRINCIPAL SUB COURT, KOLLAM DATED 31/12/2021 Exhibit P5 A TRUE COPY OF OBJECTION IN IN I.A. NO. 296 OF 2021 IN O.S NO. 37 OF 2012 BY THE
PRINCIPAL SUB COURT, KOLLAM ON
26/02/2022
Exhibit P6 A TRUE COPY OF I.A. NO. 297 OF 2021 IN
O.S NO. 37 OF 2012 BY THE PRINCIPAL SUB COURT, KOLLAM ON 26/02/2022 Exhibit P7 A TRUE COPY OF OBJECTION FILED BY THE PETITIONER IN I.A. NO. 297 OF 2021 IN O.S NO. 37 OF 2012 ON 26/02/2022 BY THE PRINCIPAL SUB COURT, KOLLAM Exhibit P8 OF CHIEF EXAMINATION ON 08/03/2023 AND CROSS- EXAMINATION CONDUCTED ON 09/08/2023 IN O.S NO. 37 OF 2012 BY THE PRINCIPAL SUB COURT, KOLLAM O.P.(C).No.2339/2023 -:5:- Exhibit P9 A TRUE COPY OF THE LEASE AGREEMENT DATED 19/09/2018 PRODUCED BY THE FIRST RESPONDENT Exhibit P10 A TRUE COPY OF THE LEASE AGREEMENT DATED 14/08/2019 PRODUCED BY THE FIRST RESPONDENT Exhibit P11 A TRUE COPY OF THE LEASE AGREEMENT DATED 17/07/2020 Exhibit P12 A TRUE COPY OF THE LEASE AGREEMENT DATED 25/08/2021 PRODUCED BY THE FIRST RESPONDENT Exhibit P13 A TRUE COPY OF THE LETTER FROM AXIS BANK PRODUCED BY THE FIRST RESPONDENT Exhibit P14 A TRUE COPY OF THE BSNL BILL DATED 27/04/2013 PRODUCED BY THE FIRST RESPONDENT Exhibit P15 A TRUE COPY OF THE BLOOD RESULTS FROM LOURDES HOSPITAL DATED 05/07/2015 PRODUCED BY THE FIRST RESPONDENT Exhibit P16 A TRUE COPY OF THE RESIDENTIAL CERTIFICATE DATED 20/03/2019 PRODUCED BY THE FIRST RESPONDENT Exhibit P17 A TRUE COPY OF THE DISCHARGE BILL DATED 05/07/2015 ISSUED BY LOURDES HOSPITAL, ERNAKULAM PRODUCED BY THE FIRST RESPONDENT Exhibit P18 A TRUE COPY OF THE AADHAR OF THE FIRST RESPONDENT Exhibit P19 A TRUE COPY OF THE DEPOSITION WITH CHIEF AFFIDAVIT OF THE PETITIONER IN O.S NO. 37 OF 2012 BY THE PRINCIPAL SUB COURT, KOLLAM O.P.(C).No.2339/2023 -:6:- Exhibit P20 A TRUE COPY OF ORDER DATED 27/09/2023 IN I.A. NO. 297 OF 2021 IN O.S 37 OF 2012 OF THE PRINCIPAL SUB COURT KOLLAM Exhibit P21 A TRUE COPY OF COMMON ORDER DATED 27/09/2023 IN IA NO 296/2021 IN I.A. NO. 297 OF 2021 IN O.S 37 OF 2012 OF THE PRINCIPAL SUB COURT KOLLAM RESPONDENT EXHIBITS Exhibit- R1(A) The true copy of the sale deed No. 4232/2000 dated 30.10.2000 of SRO, Kollam