Kerala High Court
Krishna Das vs Prasanth on 25 August, 2022
OP(C) NO. 1592 OF 2022
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 25TH DAY OF AUGUST 2022 / 3RD BHADRA, 1944
OP(C) NO. 1592 OF 2022
AGAINST THE ORDER/JUDGMENT IN OS 240/2017 OF II ADDITIONAL
SUB COURT,THRISSUR
PETITIONER/S:
1 KRISHNA DAS,S/O KOCHAPPAN,AGED 70 YEARS,
VEDANILAYAM, PAMBADI WEST P.O, THRISSUR, PIN -
680597
2 VALSALA K.C, W/O KRISHNA DAS, AGED 70 YEARS
VEDANILAYAM,PAMBADI WEST P.O,THRISSUR, PIN - 680597
BY ADVS.
SHRI.M.N.MANMADAN, CGC
A.BALAGOPALAN
A.RAJAGOPALAN
M.N.MANMADAN
M.S.IMTHIYAZ AHAMMED
SOJO J.KALLIDUKIL
P.SEENA
RESPONDENT/S:
PRASANTH
AGED 50 YEARS
S/O RAMACHANDRAN
AGED ABOUT 50 YEARS, CHAKKINGAL HOUSE,
THEJUS, THIRUVILAMALA P.O
KANIYARKODE, THRISSUR 680597, PIN - 680594
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
25.08.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(C) NO. 1592 OF 2022
2
JUDGMENT
Confronted with the order in I.A.No.3/2022 in
O.S.No.240/2017 (Ext.P4) of the Court of the Additional
Subordinate Judge II, Thrissur, the plaintiffs in the suit
have filed this original petition. The defendant in the
suit is the respondent.
2. The concise case of the petitioners in the
original petition is that: they had filed the suit against
the respondent, seeking a decree for realisation of
money. The suit is resisted by the respondent. During
the pendency of the suit, the petitioners had changed
the counsel. The suit was dismissed for default.
Immediately, after the new counsel was appointed, an
application was moved to restore the suit to file. The
earlier counsel had filed I.A.No.937/2019, seeking
leave to amend the plaint. That application was closed
when the suit was dismissed. The present counsel
found that the suit does not disclose full details and the
OP(C) NO. 1592 OF 2022
factual narrative of the facts. Thus, the petitioners filed
Ext.P2 application, seeking leave to amend the plaint.
The same was opposed by the respondent through
Ext.P3 objection. The court below, by the impugned
Ext.P4 order has dismissed Ext.P2. Ext.P4 is erroneous
and improper. Hence, the original petition.
3. Heard; Sri.A.Balagopalan, the learned counsel
appearing for the petitioners.
4. The point is whether there is any error or
illegality in Ext.P4 order passed by the Court below.
5. Admittedly, the suit was filed in the year 2017.
The specific contention of the petitioners was that the
suit is for realisation of money based on cheques. It is
further alleged that there was an oral agreement
between the petitioners and the respondent for
purchasing a property fixing the total sale
consideration for Rs.20,00,000/-. Even though the
OP(C) NO. 1592 OF 2022
respondent had received an amount of Rs.19,00,000/-
towards advance sale consideration, he failed to
execute the sale deed, instead he demanded a higher
sale price. In repayment of the advance sale
consideration, he issued four cheques for an amount of
Rs.19,00,000/-. Those cheques were dishonoured. On
the basis of the cheques, the suit was filed. The
respondent had denied the allegations in the plaint. The
issues were formulated as early as on 10.07.2019.
Later, as there was no representation for the
petitioners, the suit was dismissed for default on
06.11.2019. Later, on 16.07.2021, the suit was restored
to file and the case was posted for pre-trial steps as last
chance on 17.09.2021. Nevertheless, the suit was
adjourned from time to time. Later on 05.07.2022, an
application was filed to remove the suit from the list.
Much later, the present application was filed seeking
leave to amend the plaint. It is evident and undisputed
that the earlier application - I.A.No.937/2019 - was
OP(C) NO. 1592 OF 2022
filed, seeking leave to amend the plaint and that
application was allegedly closed when the suit was
dismissed. Instead of seeking for restoration of that
application, the petitioners have filed a fresh
application. It is trite, that the principles of resjudicata
are applicable to proceedings. The Court below, after
comparing the dismissed application, the plaint and the
present application, found that the petitioners are
attempting to take inconsistent stands and set up a new
case. In the above factual matrix, the Court below
dismissed Ext.P2 application by the impugned order. I
do not find any error or illegality in Ext.P4 order
warranting interference by this Court under Article 227
of the Constitution of India. Without prejudice to the
right of the petitioners to work out their remedies in
accordance with law, the original petition is dismissed.
Sd/-
C.S.DIAS, JUDGE
rkc/25.08.22
OP(C) NO. 1592 OF 2022
APPENDIX OF OP(C) 1592/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE PLAINT IN O.S NO 240
OF 2017
ExhibitP2 THE TRUE COPY OF I.A. 3 /2022 FILED IN
O.S NO 240 OF 2017.
ExhibitP3 THE OBJECTION FILED BY THE RESPONDENT
IN I.A. 3/2022 IN O.S NO 240 OF 2017.
ExhibitP4 THE CARBON COPY OF ORDER DATED 8/8/2022
PASSED BY THE SECOND ADDITIONAL SUB
COURT THRISSUR IN I.A. 3/2022 IN O.S NO
240 OF 2017.
