Kerala High Court
C.G. Indu vs Biju Joseph on 20 October, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 20TH DAY OF OCTOBER 2021 / 28TH ASWINA, 1943
OP(C) NO. 1793 OF 2021
AGAINST THE ORDER/JUDGMENT IN IA 6/2021 IN OS 1396/2017 OF III
ADDITIONAL MUNSIFF COURT, EKM (RENT CONTROL), ERNAKULAM
PETITIONER/S:
1 C.G. INDU
AGED 42 YEARS
W/O.V.K.UNNIKRISHNAN, 1A, CEARS MID TOWN APARTMENT,
K.P.VALLON ROAD, KADAVANTHRA, ERNAKULAM,
PIN-682020.
2 V.K.UNNIKRISHNAN,
S/O.VISWAPPAN NAIR, 1A, CEARS MID TOWN APARTMENT,
K.P.VALLON ROAD, KADAVANTHRA,
ERNAKULAM, PIN-682020.
BY ADV K.P.SUJESH KUMAR
RESPONDENT/S:
1 BIJU JOSEPH
2A, CEARS MID TOWN APARTMENTS, PADAM STOP, K.P.VALLON
ROAD,
KADAVANTHRA, KOCHI, PIN-682020.
2 MOLINA VARGHESE,
9A, CEARS MID TOWN APARTMENTS, PADAM STOP, K.P.VALLON
ROAD, KADAVANTHRA,
KOCHI, PIN-682020.
3 CEARS MID TOWN OWNER'S ASSOCIATION,
CEARS MID TOWN APARTMENTS, PADAM STOP, K.P.VALLON ROAD,
KADAVANTHRA, KOCHI,
PIN-682020, REPRESENTED BY ITS PRESIDENT.
4 THOMAS KOVOOR,
S/O.K.T.THOMAS, CEARS MID TOWN APARTMENTS, PADAM STOP,
K.P.VALLON ROAD,
OP(C) NO. 1793 OF 2021
2
KADAVANTHRA, KOCHI, PIN-682020.
5 RENU SUSAN THOMAS,
W/O.VIJU THOMAS, 8B CEARS MID TOWN APARTMENTS, PADAM
STOP, K.P.VALLON ROAD, KADAVANTHRA, KOCHI, PIN-682020.
6 SUJESH SOMAN,
S/O SOMAN, 5B,CEARS MID TOWN APARTMENTS, PADAM STOP,
K.P.VALLON ROAD, KADAVANTHRA,
KOCHI,PIN-682020.
7 GANGA.S,
W/O.PRASANTH, 11A CEARS MID TOWN APARTMENTS, PADAM STOP,
K.P.VALLON ROAD,
KADAVANTHRA, KOCHI, PIN-682020.
8 KUSUM, GOGIA,
10C, CEARS MID TOWN APARTMENTS, PADAM STOP, K.P.VALLON
ROAD,
KADAVANTHRA, KOCHI, PIN-682020.
9 RAJESH MALAMAL,
5C, CEARS MID TOWN APARTMENTS, PADAM STOP, K.P.VALLON
ROAD,
KADAVANTHRA, KOCHI, PIN-682020.
10 SADASIVAN PILLAI,
S/O.K.G.SIVARAMAN PILLAI, 4C, CEARS MID TOWN APARTMENTS,
PADAM STOP, K.P.VALLON ROAD,
KADAVANTHRA, KOCHI, PIN-682020.
11 RAJALAKSHMI KURUP,
D/O.T.A.KURUP, 3B, CEARS MID TOWN APARTMENTS, PADAM STOP,
K.P.VALLON ROAD,
KADAVANTHRA, KOCHI, PIN-682020.
12 SOBHA KURUP,
W/O.KALADHARAN, 6B,CEARS MID TOWN APARTMENTS, PADAM STOP,
K.P.VALLON ROAD,
KADAVANTHRA, KOCHI, PIN-682020.
OP(C) NO. 1793 OF 2021
3
13 DR.K.AJAYAKUMAR,
S/O.K.N.NAIR, 7A, CEARS MID TOWN APARTMENTS, PADAM STOP,
K.P.VALLON ROAD,
KADAVANTHRA, KOCHI, PIN-682020.
14 DR.K.H.IBRAHIM,
11B, CEARS MID TOWN APARTMENTS, PADAM STOP, K.P.VALLON
ROAD,
KADAVANTHRA, KOCHI, PIN-682020.
15 PRIYA VIJAY,
W/O.K.C.U, VIJAYASANKAR, 6A, CEARS MID TOWN APARTMENTS,
PADAM STOP, K.P.VALLON ROAD,
KADAVANTHRA, KOCHI, PIN-682020.
16 MATHEW .P.RAJAN,
S/O.T.P.RAJAN, 2C, CEARS MID TOWN APARTMENTS, PADAM STOP,
K.P.VALLON ROAD,
KADAVANTHRA, KOCHI, PIN-682020.
17 MINI JOHN,
9B, CEARS MID TOWN APARTMENTS, PADAM STOP, K.P.VALLON
ROAD,
KADAVANTHRA, KOCHI, PIN-682020.
18 SAJAN PULIMOOD,
S/O MATHAI, 6C, CEARS MID TOWN APARTMENTS, PADAM STOP,
K.P.VALLON ROAD,
KADAVANTHRA, KOCHI, PIN-682020.
19 SABNAM JAMEELA RAFIQ,
W/O.DR.ARAFAT MOHAMMED HAIRS, 8A, CEARS MID TOWN
APARTMENTS, PADAM STOP, K.P.VALLON ROAD, KADAVANTHRA,
KOCHI, PIN-682020.
20 DR.ANUBHAV GOYAL,
S/O H.C.GOYAL, 5A, CEARS MID TOWN APARTMENTS, PADAM STOP,
K.P.VALLON ROAD, KADAVANTHRA, KOCHI, PIN-682020.
21 AMRIN SURESH,
W/O.T.N.SURESH, 7C, CEARS MID TOWN APARTMENTS, PADAM
OP(C) NO. 1793 OF 2021
4
STOP, K.P.VALLON ROAD, KADAVANTHRA, KOCHI, PIN-682020.
22 HARSIMRAN ANAND,
D/O HARDIP ANAND, 8C, CEARS MID TOWN APARTMENTS, PADAM
STOP, K.P.VALLON ROAD, KADAVANTHRA, KOCHI, PIN-682020.
23 JOGESH J SHELAT,
S/O.J.N.SHALET, GC, CEARS MID TOWN APARTMENTS, PADAM
STOP, K.P.VALLON ROAD, KADAVANTHRA, KOCHI, PIN-682020.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 20.10.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C) NO. 1793 OF 2021
5
JUDGMENT
Dated this the 20th day of October 2021
The petitioners are defendants 1 and 2 in O.S No.1396 of
2017 on the files of the IIIrd Additional Munsiff's Court,
Ernakulam. The suit is filed for mandatory injunction directing
the petitioners to close down the opening from their apartment
and to remove all articles placed in the common area. The suit
was listed for trial on 3.08.2021. The petitioners moved an
application for removing the case from the list, pointing out that
the 2nd petitioner is working at Mumbai and is disabled from
being present in court due to the travel restrictions consequent
to the spread of Covid pandemic. Without considering the
application, the court below set the petitioners exparte.
Thereupon, the petitioners filed OP(C)No. 1308 of 2021 before
this court and as per Ext.P4 judgment, the original petition was
disposed of directing the learned Munsiff to pass orders on the
application filed by the petitioners for setting aside the exparte
OP(C) NO. 1793 OF 2021
order and to defer the trial of the suit till such time. Based on the
direction, the court below set aside the exparte order, subject to
the the petitioners paying cost of Rs. 2500/-(Rupees Two
Thousand Five Hundred only). This original petition is filed
challenging the imposition of cost. Learned counsel for the
petitioner submitted that the 2nd petitioner was disabled from
giving evidence only because of his inability to travel down from
Mumbai and this court having directed the court below to pass
orders on the application for setting aside the exparte order, the
imposition of cost amounts to gross illegality. It is the contention
of the learned counsel that the petitioners cannot be attributed
with any negligence or attempt at the procrastination of the case
and in such circumstances, there is no justification in imposing
cost.
2. When the petitioners approached this court earlier, the
trial court was directed to pass orders on the application for
setting aside the exparte order. The trial court is vested with the
discretion to pass orders taking into account all facts and
OP(C) NO. 1793 OF 2021
circumstances. The imposition of costs can be perceived only as
an attempt to balancing equities. This court, in exercise of the
supervisory power under Article 227 is not expected to interfere
with the exercise of discretion. Therefore, despite the vehement
submissions of the learned counsel for the petitioners, I refrain
from interfering with the impugned order.
In the result, the original petition is dismissed.
Sd/-
V.G ARUN
JUDGE
SJ
OP(C) NO. 1793 OF 2021
APPENDIX OF OP(C) 1793/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF I.A.NO.4/2021 IN O.S.NO.1396/2017
ON THE FILE OF THE THIRD ADDITIONAL MUNSIFF'S
COURT, ERNAKULAM, DATED 3/08/2021.
Exhibit P2 TRUE COPY OF I.A.NO.6/2021 IN O.S.NO.1396/2017
ON THE FILE OF THE THIRD ADDITIONAL MUNSIFF'S
COURT, ERNAKULAM, DATED 11/08/2021
Exhibit P3 TRUE COPY OF I.A.NO.7/2021 IN O.S.NO.1396/2017
ON THE FILE OF THE THIRD ADDITIONAL MUNSIFF'S
COURT, ERNAKULAM, DATED 11/08/2021
Exhibit P4 TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE
COURT IN OP(C)NO.1308/2021, DATED 25/08/2021
Exhibit P5 TRUE COPY OF THE PROCEEDINGS OF THE IN
O.S.NO.1396/2017 ON THE FILE OF THE THIRD
ADDITIONAL MUNSIFF'S COURT, ERNAKULAM DATED
6/10/2021 DOWNLOADED FROM THE WEBSITE
