Mambaram Educational Trust vs K.Santha
2022 Latest Caselaw 4239 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
         THURSDAY, THE 7TH DAY OF APRIL 2022 / 17TH CHAITHRA, 1944
                          OP(C) NO. 1376 OF 2021
   AGAINST THE ORDER/JUDGMENT IN CMA 21/2018 OF PRINCIPAL SUB COURT /
                       COMMERCIAL COURT, THALASSERY
                 OS 4/2015 OF MUNSIF COURT, KUTHUPARAMBA
PETITIONER/1ST RESPONDENT/1ST DEFENDNAT:

            MAMBARAM EDUCATIONAL TRUST
            REPRESENTED BY ITS CHAIRMAN,
            MAMBARAM P.MADHAVAN, S/O.KORAN,
            MILAN PATHIRIYADAMSON, KELALURE DESOM,
            P.O., MAMBARAM-670741.
            BY ADVS.
            PHILIP T.VARGHESE
            THOMAS T.VARGHESE
            ACHU SUBHA ABRAHAM
            V.T.LITHA
            K.R.MONISHA
            SHRUTHI SARA JACOB


RESPONDENT/APPELLANT/PLAINTIFF AND 2ND DEFENDANT:

     1      K.SANTHA
            W/O.MURALI, A.K.NIVAS, PATHIRAYADAMSON,
            KELALURE DESOM, P.O., MAMBARAM-670741.
     2      THE SECRETARY
            VENGAD, GRAMA PANCHAYATH P.O.,
            PATHIRIYAD-670643.
            BY ADVS.
            C.MURALIKRISHNAN (PAYYANUR)
            CIBI THOMAS
            ABRAHAM GEORGE JACOB


     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 07.04.2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(C) NO. 1376 OF 2021
                               2




                         JUDGMENT

Dated this the 7th day of April, 2022

This Original Petition has been filed under Article 227

of the Constitution of India by the petitioner, who is the

first defendant in O.S.No.4/2015 on the files of the Munsiff

Court, Kuthuparamba. The petitioner assails judgment in

CMA No.21/2018 dated 29.06.2019, whereby the learned

Munsiff confirmed the order in I.A.No.218/2018 dated

15.02.2018.

2. On facts, the learned Munsiff allowed the

application filed by the plaintiff to restore the suit back to

file on payment of cost and thereby Suit dismissed for

default got restored to file. On appeal also, the restoration

order was confirmed while disallowing the cost imposed by

the trial court.

3. Heard both sides in detail.

4. The learned counsel for the petitioner would OP(C) NO. 1376 OF 2021

argue that the plaintiff, who is the first respondent herein

willfully absent from contesting the case with ulterior

motives and therefore, the courts below went wrong in

allowing the application. She canvassed interference in

the concurrent finding entered into by the trial court as

well as the appellate court.

5. Whereas, the learned counsel for the plaintiff

urged that just one year before the date of listing of the

case, the son of the plaintiff, who was studying for MBBS,

died accidentally and the plaintiff was not in a position to

conduct the case because of the said shock. This aspect

could be seen from the records produced.

6. It is relevant to note that the application to

restore the Suit, which was dismissed for default, was filed

in time. The same was allowed by the learned Munsiff. The

said order was confirmed by the appellate court also.

Thus, concurrent finding is under challenge before this

Court.

OP(C) NO. 1376 OF 2021

Going by the orders impugned at par with the facts of

the case as discussed, I am of the view that the orders

impugned do not suffer from any arbitrariness, perversity

and absolute illegality. As such the orders impugned do

not require any interference.

In the result, this Original Petition stands dismissed.

Registry shall forward a copy of this judgment to the

court below concerned, within two weeks, for information

and compliance.

Sd/-

A. BADHARUDEEN JUDGE

nkr OP(C) NO. 1376 OF 2021

APPENDIX OF OP(C) 1376/2021

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF ORDER OF THE MUNSIFF'S COURT KUTHUPARAMBA IN I.A.NO.218/2018 IN O.S.NO.4/2015 DATED 15.2.2018. Exhibit P2 TRUE COPY OF JUDGMENT OF THE PRINCIPAL SUB COURT, THALASSERY IN C.M.A.NO.21/2018 DATED 29.06.2018.