Kerala High Court

Pradeep vs Indira Charitable Trust on 7 January, 2021

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                          PRESENT

          THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

 THURSDAY, THE 07TH DAY OF JANUARY 2021 / 17TH POUSHA, 1942

                   OP(C).No.1146 OF 2020

   I.A.NO.2115/2017 IN OS 129/2017 OF IInd ADDITIONAL SUB
                      COURT,TRIVANDRUM


PETITIONERS/PETITIONERS/PLAINTIFFS:

      1     PRADEEP
            AGED 43 YEARS
            S/O. KARUNAKARAN,
            PROPRIETOR, SMERA CONSTRUCTION,
            PUTHENPURA HOUSE,
            MELKULANGARA, VAYAKKAL P.O. KOTTARAKKARA,
            KOLLAM 691 532.

      2     S. KRISHNA KUMAR,
            AGED 42 YEARS
            S/O. SASIKUMARAKURURP, CHIRAYATH, LAKSHMI
            VILASAM, PADINJATTINKARA, KOTTARAKKARA 691 506.

            BY ADVS.
            SRI.G.KRISHNAKUMAR
            SRI.B.S.SURAJ KRISHNA

RESPONDENTS/RESPONDENTS/DEFENDANTS:

      1     INDIRA CHARITABLE TRUST
            A REGISTERED CHARITABLE TRUST,
            HAVING ITS ADMINISTRATIVE AND REGISTERED OFFICE
            AT RAJADHANI BUILDINGS, EAST FORT,
            THIRUVANANTHAPURAM 695 023, REP. BY ITS CHAIRMAN
            AND MANAGING TRUSTEE DR. BIJU RAMESH, AGED 54
            YEARS, S/O. RAMESH, RAJADHANI BUILDINGS,
            EAST FORT, THIRUVANANTHAPURAM 695 023.
 O.P.(C)Nos.1146 and 1178 of 2020

                           :-2-:

      2     DR. BIJU RAMESH,
            AGED 54 YEARS
            S/O. RAMESH, CHAIRMAN AND MANAGING TRUSTEE,
            INDIRA CHARITABLE TRUST, RAJADHANI BUILDINGS,
            EAST FORT, THIRUVANANTHAPURAM 695 023.

      3     RANI BIJU,
            AGED 49 YEARS
            W/O. DR. BIJU RAMESH, MEMBER SECRETARY,
            INDIRA CHARITABLE TRUST, RAJADHANI BUILDINGS,
            EAST FORT, THIRUVANANTHAPURAM 695 023.

      4     RESHMA RAMESH,
            AGED 28 YEARS
            D/O. DR. BIJU RAMESH, MEMBER INDIRA CHARITABLE
            TRUST, RAJADHANI BUILDINGS, EAST FORT,
            THIRUVANANTHAPURAM 695 023.

      5     MEGHA RAMESH,
            AGED 26 YEARS
            D/O. DR. BIJU RAMESH, MEMBER INDIRA CHARITABLE
            TRUST, RAJADHANI BUILDINGS, EAST FORT,
            THIRUVANANTHAPURAM 695 023.

            R1-5 BY ADV. SRI.C.P.SAJI
            R1-5 BY ADV. SMT.P.DEEPTHI
            R1-5 BY ADV. SMT.P.DEEPA MOHAN

     THIS   OP  (CIVIL)   HAVING  BEEN FINALLY  HEARD ON
07.01.2021, ALONG WITH OP(C).1178/2020, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
 O.P.(C)Nos.1146 and 1178 of 2020

                           :-3-:

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                          PRESENT

          THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

 THURSDAY, THE 07TH DAY OF JANUARY 2021 / 17TH POUSHA, 1942

                   OP(C).No.1178 OF 2020

I.A.NO.1139/2018 IN OS 73/2018 OF IInd ADDITIONAL SUB COURT,
                         TRIVANDRUM


PETITIONERS/PETITIONERS/PLAINTIFFS:

      1     PRADEEP
            AGED 43 YEARS
            S/O. KARUNAKARAN, PROPRIETOR, SMERA
            CONSTRUCTION, PUTHENPURA HOUSE, MELKULANGARA,
            VAYAKKAL P.O, KOTTARAKKARA, KOLLAM 691 532

      2     S. KRISHNA KUMAR,
            AGED 42 YEARS
            S/O. SASIKUMARAKURUP, CHIRAYATH, LAKSHMI
            VILASAM, PADINJATTINKARA, KOTTARAKKARA 691 506

            BY ADVS.
            SRI.G.KRISHNAKUMAR
            SRI.B.S.SURAJ KRISHNA

RESPONDENTS/RESPONDENTS/DEFENDANTS:
      1     INDIRA CHARITABLE TRUST
            A REGISTERED CHARITABLE TRUST, HAVING ITS
            ADMINISTRATIVE AND REGISTERED OFFICE AT
            RAJADHANI BUILDINGS, EAST FORT,
            THIRUVANANTHAPURAM 695 023
            REPRESENTED BY ITS CHAIRMAN AND MANAGING TRUSTEE
            DR. BIJU RAMESH, AGED 54 YEARS, S/O. RAMESH,
            RAJADHANI BUILDINGS, EAST FORT,
            THIRUVANANTHAPURAM 695 023
 O.P.(C)Nos.1146 and 1178 of 2020

                           :-4-:

      2     DR. BIJU RAMESH,
            AGED 54 YEARS
            S/O. RAMESH, CHAIRMAN AND MANAGING TRUSTEE,
            INDIRA CHARITABLE TRUST, RAJADHANI BUILDINGS,
            EAST FORT, THIRUVANANTHAPURAM 695 023

      3     RANI BIJU,
            AGED 49 YEARS
            W/O. DR. BIJU RAMESH, MEMBER SECRETARY, INDIRA
            CHARITABLE TRUST, RAJADHANI BUILDINGS,
            EAST FORT, THIRUVANANTHAPURAM 695 023

      4     RESHMA RAMESH,
            AGED 28 YEARS
            D/O. DR. BIJU RAMESH, MEMBER INDIRA CHARITABLE
            TRUST, RAJADHANI BUILDINGS, EAST FORT,
            THIRUVANANTHAPURAM 695 023

      5     MEGHA RAMESH,
            AGED 26 YEARS
            D/O. DR. BIJU RAMESH, MEMBER INDIRA CHARITABLE
            TRUST, RAJADHANI BUILDINGS, EAST FORT,
            THIRUVANANTHAPURAM 695 023.

            R1-5 BY ADV. SRI.C.P.SAJI
            R1-5 BY ADV. SMT.P.DEEPTHI
            R1-5 BY ADV. SMT.P.DEEPA MOHAN

     THIS   OP  (CIVIL)   HAVING  BEEN FINALLY  HEARD ON
07.01.2021, ALONG WITH OP(C).1146/2020, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
 O.P.(C)Nos.1146 and 1178 of 2020

                                 :-5-:

            Dated this the 7th day of January, 2021


                         J U D G M E N T

O.P.(C)No.1146/2020 arises from O.S.No.129/2017

on the file of IInd Additional Sub Court,

Thiruvananthapuram. O.P.(C)No.1178/2020 arises out

of the proceedings of the same court in

O.S.No.73/2018. The petitioners in both matters are

hte plaintiffs.

2. Both the suits were filed for recovery of

realisation of money by the same plaintiff against

the same defendants. It is submitted that in both

the suits, conditional orders of attachment before

judgment were issued by the court at the request

made by the plaintiff. At some point of time, the

respondents were set ex parte for their absence

from the proceedings. Thereupon, the respondents

filed applications seeking to set aside the ex

parte order passed against them. The grievance of O.P.(C)Nos.1146 and 1178 of 2020

:-6-:

the petitioners is that before adjudicating the

applications filed for setting aside the ex parte

order, the court below went on to take up and

decide the petitions for attachment before judgment

contrary to principles of procedural law. The

plaintiffs being aggrieved by the action of the

court below, filed both these original petitions

invoking Article 227 of the Constitution of India

for a direction to be issued to II nd Additional Sub

Court not to proceed to decide the applications for

attachment before judgment in both suits before

disposing of the petitions for setting aside the ex

parte order.

3. I heard the learned counsel for the

respondents. Learned counsel Smt.Deepa Mohan

submitted that she has no objection in direction

being given to the IInd Additional Sub Judge,

Thiruvananthapuram, in taking up I.A.No.1/2020 in O.P.(C)Nos.1146 and 1178 of 2020

:-7-:

O.S.No.129/2017 and I.A.No.1/2020 in O.S.No.73/2018

and disposing it of before the learned Judge

proceeding to decide I.A.No.2115/2017 and

I.A.No.1139/2018 in the respective suits. I am also

inclined to accept the legal position canvassed by

the petitioners in both these matters that it is

not legally fair to decide the applications for

attachment before deciding the petitions for

setting aside the ex parte order.

In the result, both the original petitions are

allowed with direction to the IInd Additional Sub

Judge, Thiruvananthapuram, to take up and dispose

of I.A.No.1/2020 in respective suits before

proceeding to decide the applications for

attachment before judgment in the suits. It is

further directed that the impugned applications in

the suits shall be disposed of by the learned Judge

of IInd Additional Sub Court, Thiruvananthapuram, O.P.(C)Nos.1146 and 1178 of 2020

:-8-:

within a period of one month from the date of

receipt of certified copy of this order.

All pending interlocutory applications are

closed.

Sd/-

T.V.ANILKUMAR JUDGE ami/ O.P.(C)Nos.1146 and 1178 of 2020

:-9-:

APPENDIX OF OP(C) 1146/2020 PETITIONERS' EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE PLAINT IN OS NO. 129/17 ON THE FILES OF THE 2ND ADDL. SUB COURT, THIRUVANANTHAPURAM.

EXHIBIT P2 TRUE COPY OF THE IA NO. 2115/2017 IN OS NO. 129/17 ON THE FILES OF THE 2ND ADDITIONAL SUB COURT, THIRUVANANTHAPURAM.

EXHIBIT P3 TRUE COPY OF THE COUNTER AFFIDAVIT FIELD BY THE 2ND RESPONDENT/ 2ND DEFENDANT ON THE FILES OF THE 2ND ADDITIONAL SUB COURT, THIRUVANANTHAPURAM.

EXHIBIT P4 TRUE COPY OF THE IA NO. 1/2020 IN OS 129/17 ON THE FILES OF THE 2ND ADDITIONAL SUB COURT, THIRUVANANTHAPURAM.

EXHIBIT P5 TRUE COPY OF THE PRINT OUT TAKEN FROM E-

COURT SERVICE WITH REGARD TO THE PROCEEDINGS IN OS NO. 129/17 ON THE FILES OF THE 2ND ADDL. SUB COURT, THIRUVANANTHAPURAM.

O.P.(C)Nos.1146 and 1178 of 2020

:-10-:

APPENDIX OF OP(C) 1178/2020 PETITIONERS' EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE PLAINT IN OS NO.

73/2018 ON THE FILES OF THE 2ND ADDL. SUB COURT, THIRUVANANTHAPURAM

EXHIBIT P2 TRUE COPY OF THE IA NO. 1139/2018 IN O.S NO. 73/2018 ON THE FILES OF THE 2ND ADDITIONAL SUB COURT, THIRUVANANTHAPURAM

EXHIBIT P3 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 2ND RESPONDENT/2ND DEFENDANT ON THE FILES OF THE 2ND ADDITIONAL SUB COURT, THIRUVANANTHAPURAM

EXHIBIT P4 TRUE COPY OF THE PROOF AFFIDAVIT FILED BY THE PLAINTIFFS IN O.S NO. 73/2018 ON THE FILES OF THE 2ND ADDL. SUB COURT, THIRUVANANTHAPURAM

EXHIBIT P5 TRUE COPY OF THE IA NO 1/2020 IN OS 73/2018 ON THE FILES OF THE 2ND ADDITIONAL SUB COURT, THIRUVANANTHAPURAM

EXHIBIT P6 TRUE COPY OF THE PRINT OUT TAKEN FROM E-