Sundaran vs Kumaran
2021 Latest Caselaw 4924 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

               THE HONOURABLE MR. JUSTICE SATHISH NINAN

    WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021 / 21ST MAGHA,1942

                        OP(C).No.1410 OF 2020

               OS 283/1999 OF MUNSIFF COURT, OTTAPPALAM

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PETITIONER:
               SUNDARAN
               AGED 70 YEARS
               S/O. LATE ARUNACHALAM MUDALI, PANTHAPULAKKIL
               THERUVIL, KULUKKILIYAD AMSOM, KOTTAPURAM DESOM AND
               POST, OTTAPALAM TALUK, PALAKKAD DIST., 679 513.

               BY ADV. SRI.R.SREEHARI

RESPONDENTS:

      1        KUMARAN
               AGED 57 YEARS
               S/O. LATE ARUNACHALAM MUDALI, PANTHAPULAKKIL
               THERUVIL, KULUKKILIYAD AMSOM, KOTTAPURAM DESOM AND
               POST, OTTAPALAM TALUK, PALAKKAD DIST. 679 513.

      2        HARIDASAN,
               AGED 60 YEARS
               S/O. LATE ARUNACHALAM MUDALI, PANTHAPULAKKIL
               THERUVIL, KULUKKILIYAD AMSOM, KOTTAPURAM DESOM AND
               POST, OTTAPALAM TALUK, PALAKKAD DIST. 679 513.

      3        SARASWATHI,
               AGED 60 YEARS
               D/O. LATE ARUNACHALAM MUDALI, PANTHAPULAKKIL
               THERUVIL, KULUKKILIYAD AMSOM, KOTTAPURAM DESOM AND
               POST, OTTAPALAM TALUK, PALAKKAD DIST. 679 513.

      4        B. PERIYASWAMI,
               AGED 55 YEARS
               H/O. LATE MAHESWARI, RESIDING AT 95/4, CHINNNA
               GOUNDER NAGAR, MATHALAYAMROAD, SARAVANAM PATTI,
               COIMBATORE 641 035, TAMIL NADU.

      5        ROSHINI,
               AGED 24 YEARS
               D/O. LATE MAHESWARI, RESIDING AT 95/4, CHINNA GOUNDER
               NAGAR, MATHALAYAM ROAD,SARAVANAM PATTI, COIMBATORE
               641 035, TAMIL NADU.
 OP(C).No.1410 OF 2020



        6        MOHANASUNDARAN,
                 AGED 21 YEARS, S/O. LATE MAHESWARI, RESIDING AT
                 95/4 CHINNA GOUNDER NAGAR, MATHALAYAM ROAD,
                 SARAVANAMPATTI, COIMBATORE 641 035, TAMIL NADU.

                 R1 BY ADV. SRI.P.JAYARAM

     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 10.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                    SATHISH NINAN, J.
          ==================
                O. P. (C) No.1410 of 2020
          ==================
         Dated this the 10th day of February, 2021

                          JUDGMENT

Order accepting the written statement filed by

the first defendant is assailed in this original petition by the plaintiff.

2. Heard Sri.R.Sreehari on behalf of the

petitioner and Sri.P.Jayaram on behalf of the

respondents.

3. The suit is one for permanent prohibitory

injunction against trespass. The suit was

originally decreed exparte. The application seeking

to set aside the exparte decree filed by the 4 th

defendant in the suit, which was accompanied by a

delay petition, was allowed by the trial court on

condoning the delay. The order was challenged by

the petitioner herein (plaintiff) before this Court

in OP(C) 1748/2015. This Court refused to interfere

with the order of the trial court. It is thereafter

that the first defendant sought permission to file

written statement.

O. P. (C) No.1410 of 2020

4. While it is true that the application to set

aside the exparte decree was moved by the 4 th

defendant alone, going by the first proviso to

Order IX Rule 13 CPC when the decree is of such a

nature that it cannot be set aside as against one

of the defendants alone, it may be set aside

against all the defendants. In the case at hand,

defendants 1 and 3 to 5 are siblings having common

interest in the subject matter of the suit. The

trial court while setting aside the exparte took

note of the fact that the petitioner in the

application to set aside the exparte, who was the

4th defendant, is not the only defendant in the suit

and it is thereafter that the ex parte decree was

set aside. In the nature of the claim and the

interest claimed, it can only be understood that

the exparte decree was set aside as against all the

defendants. Consequently the first defendant is

entitled to contest the suit.

5. Of course, there has been inordinate delay

in filing written statement by the first defendant.

Though the trial court has imposed a cost of O. P. (C) No.1410 of 2020

`2,000/-, on the facts I feel that the same is on

the lower side. The cost imposed shall stand re-

fixed at `7,500/-. The cost shall be payable within

a period of two weeks from today. But for the

enhancement of cost, the order impugned warrants no

interference.

Original petition is disposed of as above.

Sd/-

SATHISH NINAN JUDGE kns/-

//True Copy// P.S. to Judge OP(C).No.1410 OF 2020

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 PHOTOCOPY OF JUDGMENT IN OS NO. 283/1999 OF MUNSIFF COURT, OTTAPALAM DT. 13.03.2013.

EXHIBIT P2 PHOTOCOPY OF DECREE IN O.S.NO. 283/1999 OF MUNSIFF COURT, OTTAPALAM DT. 13.03.2013.

EXHIBIT P3 PHOTOCOPY OF THE COMMON ORDER PASSED IN IA NOS. 3009/2013 AND 3010/2013 IN OS 283/1999 OF MUNSIFF COURT, OTTAPALAM DT. 31.02.2015.

EXHIBIT P4 PHOTOCOPY OF JUDGMENT IN OP(C) NO.

1748/2015 DT. 22.10.2019.

EXHIBIT P5 PHOTOCOPY OF AFFIDAVIT FILED IN SUPPORT OF IA 357/2020 IN OS NO. 283/1999 OF MUNSIFF COURT, OTTAPALAM.

EXHIBIT P6 PHOTOCOPY OF OBJECTION FILED IN IA 357/2020 IN OS 283/1999 OF MUNSIFF COURT, OTTAPALAM.

EXHIBIT P7 PHOTOCOPY OF THE ORDER PASSED IN IA 357/2020 IN OS NO. 283/1999 OF MUNSIFF COURT, OTTAPALAM DT. 21.05.2020.

EXHIBIT P8 PHOTOCOPY OF JUDGMENT REPORTED IN 2002 (1) KLT 151.

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