Baby vs Josekuttan
2021 Latest Caselaw 3782 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

              THE HONOURABLE MR. JUSTICE SATHISH NINAN

    TUESDAY, THE 02ND DAY OF FEBRUARY 2021 / 13TH MAGHA,1942

                        OP(C).No.1044 OF 2020

     CMA 6/2020 OF IV    ADDITIONAL DISTRICT COURT, THRISSUR

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PETITIONER:

              BABY
              AGED 56 YEARS
              S/O.KIDANGAN POULOSE, IRIMBRANELLUR VILLAGE AND
              DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT, PIN-
              680510.

              BY ADVS.
              SRI.K.R.ARUN KRISHNAN
              SMT.DEEPA K.RADHAKRISHNAN
              SRI.ARUN SAMUEL

RESPONDENT:

              JOSEKUTTAN
              AGED 63 YEARS
              S/O.KIDANGAN POULOSE, KIDANGAN HOUSE, IRIMBRANELLUR
              VILLAGE AND DESOM, CHAVAKKAD TALUK, THRISSUR
              DISTRICT, PIN-680510.


     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 02.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                    SATHISH NINAN, J.
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               O. P. (C) No.1044 of 2020
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         Dated this the 2nd day of February, 2021


                          JUDGMENT

The suit and the counter claim, both claiming

the relief for partition, were being proceeded with. While so, the suit was dismissed for default.

The petitioner-plaintiff filed an application for

restoration of the suit, with a delay of 3960 days.

The trial court allowed the application on the

condition of payment of costs of `15,000/-. The

petitioner challenged the said order insofar as it

imposed costs, by filing CMA 6/2020. Since pending

the CMA the counter claim was being proceeded with, an application was filed by the petitioner-

plaintiff, seeking stay of the counter claim till

the disposal of the CMA. The application was

dismissed, against which this original petition.

2. I am of the opinion that the proceedings are

being unnecessarily protracted. The delay in

seeking for restoration being 3960 days, the trial O. P. (C) No.1044 of 2020

court was justified in imposing costs of `15,000/-.

The said order suffers from no illegality and

warrants no interference. It is only appropriate

that the suit and the counter claim being tried and

disposed of together.

The petitioner shall pay the costs of

`15,000/-, as ordered by the trial court, on or

before 20.02.2021, to the counsel appearing for the

respondent before the trial court. On such payment,

the suit will stand restored back to file.

Thereafter trial court shall proceed to dispose of

the suit and the counter claim in accordance with

law. In view of the above, CMA 6/2020 before the

IV Additional District Court, Thrissur, shall stand

dismissed as infructuous. Original Petition is

disposed of as above.

Sd/-

SATHISH NINAN JUDGE

kns/-

//True Copy// P.S. to Judge OP(C).No.1044 OF 2020

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 A TRUE COPY OF THE PLAINT IN OS NO.317/2003 ON THE FILE OF THE SUB COURT, THRISSUR DATED 09.04.2003.

EXHIBIT P2 A TRUE COPY OF THE COUNTER CLAIM IN OS NO.317/2003 ON THE FILE OF THE SUB COURT, THRISSUR.

EXHIBIT P3              A TRUE COPY OF         WRITTEN STATEMENT FILED BY
                        THE PETITIONER         IN THE COUNTERCLAIM OF OS
                        NO.317/2003 ON         THE FILE OF THE SUB COURT,
                        THRISSUR DATED         26.06.2007.

EXHIBIT P4              A TRUE COPY OF CMA NO.6/2020 ON THE FILE OF

VITH ADDITIONAL DISTRICT COURT, THRISSUR DATED 22.01.2020

EXHIBIT P5 A TRUE COPY OF IA NO.2/2020 IN CMA NO.6/2020 ON THE FILE OF IVTH ADDITIONAL DISTRICT COURT, THRISSUR DATED 22.01.2020.

EXHIBIT P6 A TRUE COPY OF THE ORDER IN IA NO.2/2020 IN CMA NO.6/2020 ON THE FILE OF IVTH ADDITIONAL DISTRICT COURT, THRISSUR DATED 10.03.2020.

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