The Court Of Subordinate Judge vs Unknown
2021 Latest Caselaw 3245 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                          PRESENT

          THE HONOURABLE MR. JUSTICE A.HARIPRASAD

                             &

          THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

   FRIDAY, THE 29TH DAY OF JANUARY 2021 / 9TH MAGHA, 1942

                     FAO.No.92 OF 2019

AGAINST THE COMMON ORDER DATED16-08-2018 IN I.A NO.471 OF
2017 & I.A NO.472 OF 2017 AND ORDERS DATED 31-08-2018 IN
I.A NO.471 OF 2017 & I.A NO.472 OF 2017 IN OS 365/2012 OF
THE COURT OF SUBORDINATE JUDGE, OTTAPPALAM.


APPELLANT/ PETITIONER IN IAs/
DEFENDANTS 20, 22, 23, 28 & 31 IN O.S:

      1     SAIDALI,
            S/O. MAMMI @ KULAMAMMI,
            AGED 66 YEARS,PETTAYIL HOUSE,
            AKALUR POST, PAZHAYALAKKIDI,
            OTTAPALAM TALUK, PALAKKAD.

      2     ASHRAF,
            AGED 62 YEARS,S/O. MAMMI @ KULAMAMMI,
            PETTAYIL HOUSE, AKALUR POST, PAZHAYALAKKIDI,
            OTTAPALAM TALUK, PALAKKAD.

      3     NABEESA,
            AGED 76 YEARS,S/O. MAMMI @ KULAMAMMI,
            PETTAYIL HOUSE, AKALUR POST, PAZHAYALAKKIDI,
            OTTAPALAM TALUK, PALAKKAD.

      4     RAMLA,
            AGED 51 YEARS,S/O. MAMMI @ KULAMAMMI,
            PETTAYIL HOUSE, AKALUR POST, PAZHAYALAKKIDI,
            OTTAPALAM TALUK, PALAKKAD.
 FAO No.92 of 2019                    2




        5           KAMAR,
                    AGED 43 YEARS,S/O. MAMMI @ KULAMAMMI,
                    PETTAYIL HOUSE, AKALUR POST, PAZHAYALAKKIDI,
                    OTTAPALAM TALUK, PALAKKAD.

                    BY ADVS.
                    SRI.VISHNU BHUVANENDRAN
                    SMT.B.ANUSREE.



RESPONDENTS - RESPONDENTS IN IAs/PLAINTIFFS

& DEFENDANTS 1 TO 19, 21, 24 TO 27, 29 & 30 IN O.S :

1 MUHAMMED, AGED 67 YEARS, S/O. KADEEJA, KALATHINKAL VEEDU, OTTAPALAM POST, R.S. ROAD-679101,

2 RUKKIYA, AGED 53 YEARS, W/O. HAMSA, KALATHINKAL VEEDU, OTTAPALAM POST, R.S. ROAD-679101,

3 AMJITH, AGED 32 YEARS, S/O.HAMSA, KALATHINKAL VEEDU, OTTAPALAM POST, R.S. ROAD-679101,

4 SAJITHA,AGED 28 YEARS, S/O. HAMSA, KALATHINKAL VEEDU, OTTAPALAM POST, R.S. ROAD-679101,

5 SHAHINA, AGED 25 YEARS, S/O. HAMSA,KALATHINKAL VEEDU, OTTAPALAM POST, R.S. ROAD-679101,

6 RUKKIYA, AGED 63 YEARS, D/O. FATHIMA BEEVI, ATHANIKKAL VEEDU, AKALUR POST, PAZHAYALAKKIDI, OTTAPALAM TALUK-679302.

7 KADEEJA, AGED 61 YEARS, D/O. FATHIMA BEEVI, ATHANIKKAL VEEDU, AKALUR POST, PAZHAYALAKKIDI, OTTAPALAM TALUK,-679302.

8 ABDUL RAHIMAN, AGED 61 YEARS, S/O.FATHIMA BEEVI, ATHANIKKAL VEEDU, AKALUR POST, PAZHAYALAKKIDI, OTTAPALAM TALUK-679 302.

9 KAMAR LAILA, AGED 54 YEARS, D/O.FATHIMA BEEVI, ATHANIKKAL VEEDU, AKALUR POST,PAZHAYALAKKIDI, OTTAPALAM TALUK-679 302.

10 UMAIBA, AGED 51 YEARS, D/O.FATHIMA BEEVI, ATHANIKKAL VEEDU, AKALUR POST,PAZHAYALAKKIDI, OTTAPALAM TALUK-679 302.

11 BEEPATHUMMA, AGED 65 YEARS, W/O.HAMSA, ATHANIKKAL VEEDU,AKALUR POST, PAZHAYALAKKIDI, OTTAPALAM TALUK-679 302.

12 KADEEJA, AGED 45 YEARS, D/O.HAMSA, ATHANIKKAL VEEDU,AKALUR POST, PAZHAYALAKKIDI, OTTAPALAM TALUK-679 302.

13 IBRAHIM, AGED 40 YEARS,D/O.HAMSA, ATHANIKKAL VEEDU, AKALUR POST, PAZHAYALAKKIDI, OTTAPALAM TALUK-679 302.

14 PATHUTTI UMMA, AGED 64 YEARS, D/O.BABEESA,KALATHINKAL VEEDU, AKALUR POST,PZHAYALAKKIDI, OTTAPALAM TALUK-679 302.

15 KADEEJA, AGED 64 YEARS, D/O.NABEESA, ARATHODI VEEDU, PERUR POST, OTTAPALAM TALUK,PALAKKAD-679 302.

16 AZEEZ, AGED 62 YEARS, D/O.NABEESA, THAIKKATTIL VEEDU, PERUR POST, OTTAPALAM-679 302.

17 RUKKIYA, AGED 58 YEARS, D/O.NABEESA,THODIVALAPPIL VEEDU, NAGARIPURAM POST,MANNUR, PALAKKAD TALUK-678 642.

18 ATHIKKA, AGED 52 YEARS, D/O.NABEESA, PARAKANNI VEEDU, PAZHAYALAKKIDI, AKALUR POST, OTTAPALAM TALUK, PALAKKAD-679 302.

19 ASMA BEEVI, AGED 55 YEARS, D/O.NABEESA,THAIKKATTIL VEEDU, PERUR POST,OTTAPALAM TALUK,PALAKKAD-679 302.

20 RAFEEK, AGED 37 YEARS, S/O.NABEESA,THAIKKATTIL VEEDU, PERUR POST,OTTAPALAM TALUK,PALAKKAD-679 302.

21 HAMSA, AGED 34 YEARS,S/O.NABEESA, THAIKKATTIL VEEDU,PERUR POST, OTTAPALAM TALUK,PALAKKAD-679 302.

22 RAHMATH, AGED 32 YEARS,D/O.NABEESA, THAIKKATTIL VEEDU,PERUR POST, OTTAPALAM TALUK,PALAKKAD-679 302.

23 RASHEED, AGED 32 YEARS,D/O.NABEESA, THAIKKATTIL VEEDU,PERUR POST, OTTAPALAM TALUK,PALAKKAD-679 302.

24 ZEENATH, AGED 24 YEARS,D/O.NABEESA, THAIKKATTIL VEEDU,PERUR POST, OTTAPALAM TALUK,PALAKKAD-679 302.

25 AZEEZ, AGED 62 YEARS, S/[email protected], PETTAYIL HOUSE,AKALUR POST, PAZHAYALAKKIDI,OTTAPALAM TALUK, PALAKKAD-679 302.

26 KADEEJA, AGED 53 YEARS, D/[email protected], PETTAYIL HOUSE, AKALUR POST, PAZHAYALAKKIDI, OTTAPALAM TALUK, PALAKKAD-679 302.

27 SABIYA, AGED 53 YEARS, D/[email protected], PETTAYIL HOUSE,AKALUR POST, PAZHAYALAKKIDI,OTTAPALAM TALUK, PALAKKAD-679 302.

28 ASMABEEVI, AGED 59 YEARS, D/[email protected], PETTAYIL HOUSE,AKALUR POST, PAZHAYALAKKIDI,OTTAPALAM TALUK, PALAKKAD-679 302.

29 BASHEER, AGED 59 YEARS, S/[email protected], PETTAYIL HOUSE,AKALUR POST, PAZHAYALAKKIDI, OTTAPALAM TALUK, PALAKKAD-679 302.

30 BEEFATHUMMA, AGED 53 YEARS, D/[email protected], PETTAYIL HOUSE, AKALUR POST, PAZHAYALAKKIDI, OTTAPALAM TALUK, PALAKKAD-679 302.

31 JAMEELA, AGED 43 YEARS, D/[email protected], PETTAYIL HOUSE, AKALUR POST, PAZHAYALAKKIDI, OTTAPALAM TALUK, PALAKKAD-679 302.

THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 29.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

A.HARIPRASAD & T.V.ANILKUMAR, J J.

--------------------------------------

FAO No.92 of 2019

--------------------------------------

Dated this the 29th day of January, 2021

JUDGMENT

T.V.Anilkumar, J

Appellants are the defendant Nos.20, 22, 23, 28 and 31 in

O.S No.365 of 2012 on the file of the Subordinate Judge,

Ottappalam.

2. They filed I.A No.472 of 2017 and I.A No.471 of 2017

respectively seeking to set aside an ex-parte decree passed against

them after condoning delay of 130 days in filing the application.

3. The court below, after hearing the parties, allowed both

applications finding that there were sufficient reasons which

prevented the appellants from appearing in the suit when it was

called for hearing. The applications was allowed on a condition of

payment of cost of Rs.10,000/- within two weeks from the date of the

order with a default clause. Since payment was not made as directed,

both the applications were later dismissed on 31-08-2018.

4. The appellants challenge the legality of the said order in

the appeal contending that the amount of cost imposed was

excessive and further they are not in a position to raise such a huge

amount.

5. Though respondents were served in this proceeding, they

failed to appear.

6. We heard the learned counsel for the appellants. We are

satisfied from the facts and circumstances of the case that the

amount of cost imposed is rather excessive and the appellants are

not in a position to raise such a huge amount. Having regard to their

impecunious position, we are inclined to reduce the amount of cost

from Rs.10,000/- to Rs.5,000/-

6. Learned counsel for the appellants pleaded for some

indulgence to be shown in the matter and requested for two weeks'

time for remittance of the modified amount of cost. We accept the

demand made as reasonable and accordingly, we allow the

appellants to remit the cost amount of Rs.5,000/- (Rupees five

thousand only) within a period of 15 days from today.

In the result, FAO is allowed and impugned order is set

aside. If the amount is paid within due time, I.A Nos.471 & 472 of

2017 in O.S No.365 of 2012 will stand allowed and the court below

will restore the suit to file ad proceed with the suit. On the other hand

if the amount ordered is not paid within the stipulated time, the I.As

above will stand dismissed.

A. HARIPRASAD, JUDGE.

T.V.ANILKUMAR, JUDGE

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