Kerala High Court
Vengakkandi Kottoor Matathil ... vs Lakshmikutty Amma on 24 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
WEDNESDAY, THE 24TH DAY OF FEBRUARY 2021 / 5TH PHALGUNA, 1942
OP(C).No.1056 OF 2019
AGAINST THE ORDER/JUDGMENT IN OS 7/2016 OF MUNSIFF-MAGISTRATE
COURT, PAYYOLI
PETITIONER/S:
VENGAKKANDI KOTTOOR MATATHIL DEVAKI AMMA,
AGED 55 YEARS
W/O NARAYANAN NAMBEESAN, PADINHARATH, MUZHAKKUNNU
AMSOM, DESOM, THALASSERY TALUK, KANNUR DISTRICT.
BY ADVS.
SRI.B.KRISHNAN
SHRI.R.PARTHASARATHY
RESPONDENT/S:
1 LAKSHMIKUTTY AMMA
W/O SANKARA NARAYANA KALLURAYAR, ERUVAKKIKALATHIL
HOUSE, THIRUNELLI AMBALAM P.O.KATTIKKULAM, WAYANAD
DISTRICT-670 646
2 P.PARVATHY AMMA,
W/O KUNHIRAMAN NAMBEESAN, DINESH VIHAR HOUSE,
PERAMBRA AMSOM, MENHYANYAM DESOM, VADAKARA TALUK,
KOZHIKODE DISTRICT-673 525
3 P.DINESAN,
S/O KUNHIRAMAN NAMBEESAN, DINESH VIHAR HOUSE,
PERAMBRA AMSOM, MENHYANYAM DESOM, VADAKARA TALUK,
KOZHIKODE DISTRICT-673 525
4 P.NARAYANAN,
S/O KUNHIRAMAN NAMBEESAN, DINESH VIHAR HOUSE,
PERAMBRA AMSOM, MENHYANYAM DESOM, VADAKARA TALUK,
KOZHIKODE DISTRICT-673 525
5 P.SUDHEER,
S/O KUNHIRAMAN NAMBEESAN, DINESH VIHAR HOUSE,
PERAMBRA AMSOM, MENHYANYAM DESOM, VADAKARA TALUK,
KOZHIKODE DISTRICT-673 525
6 P.PRASAD,
S/O KUNHIRAMAN NAMBEESAN, DINESH VIHAR HOUSE,
OP(C).No.1056 OF 2019
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PERAMBRA AMSOM, MENHYANYAM DESOM, VADAKARA
TALUK, KOZHIKODE DISTRICT-673 525
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON
24.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(C).No.1056 OF 2019
-3-
JUDGMENT
Dated this the 24th day of February 2021
Petitioner challenges order dated 31.01.2019 in I.A
No.454/2017 in O.S No.07/2016 on the files of Munsiff Magistrate
Court, Payyoli. The impugned order is produced as Ext.P7.
2. In spite of service of notice, there is no representation
for respondents.
3. O.S No.07/2016 is a suit filed for declaration and
consequential injunction, in which, Ext.P4 Commission Report was
filed on the application of the petitioner. However, subsequently,
Ext.P5 application was filed under Order 26 Rule 10 of CPC seeking
to remit the Commission Report.
4. Even though, the defendants had filed an objection to
the application, on the date posted for hearing, the counsel for the
petitioner failed to appear. Consequently, the learned Munsiff,
OP(C).No.1056 OF 2019
after noticing that even after granting ample opportunities, there
was a failure to appear for hearing and dismissed the application
for default.
5. Taking into reckoning the controversy involved in O.S
No.07/2016, I am of the view that the plaintiff can be granted one
more opportunity on terms, since the parties need not be deprived
of an adjudication on merits.
Accordingly, Ext.P7 is set aside, on condition that petitioner
pays an amount of Rs.1000/- (Rupees One thousand only) to the
defendants in the court below, within a period of one month from
the date of receipt of a copy of this judgment. If the condition
imposed is not complied with, the original petition shall stand
dismissed.
The Original Petition is allowed as above.
Sd/-
BECHU KURIAN THOMAS
JUDGE
JS
OP(C).No.1056 OF 2019
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PLAINT FILED IN OS
7/2016 PENDING BEFORE MUNSIFF COURT,
PAYYOLI DATED 28.1.2016
EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT
FILED BY 1ST DEFENDANT DATED 18.3.2016
EXHIBIT P3 TRUE COPY OF THE APPLICATION IA
792/2016 FOR APPOINTMENT OF ADVOCATE
COMMISSIONER DATED 17.11.2016
EXHIBIT P4 TRUE COPY OF THE COMMISSIONERS REPORT
AND PLAN SUBMITTED BY THE ADVOCATE
COMMISSIONER
EXHIBIT P5 TRUE COPY OF THE APPLICATION FOR
REMITTING THE COMMISSIONERS REPORT AND
PLAN DATED 26.7.2017
EXHIBIT P6 TRUE COPY OF THE COUNTER AFFIDAVIT
DATED 13.8.2017
EXHIBIT P7 TRUE COPY OF THE ORDER DISMISSING IA
454/2017 DATED 31.1.2019
EXHIBIT P8 TRUE COPY OF THE APPLICATION FOR
ADJOURNMENT DATED 1.3.2019
