Pankajavalliyamma vs Indira Devi
2022 Latest Caselaw 1801 Ker

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
                  THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
         WEDNESDAY, THE 16TH DAY OF FEBRUARY 2022 / 27TH MAGHA, 1943
                            OP(C) NO. 313 OF 2022
   AGAINST THE ORDER/JUDGMENT IN IA 3/2021 & 4/2021 IN OS 140/1997 OF
                          MUNSIFF COURT, THIRUVALLA
PETITIONERS:

     1        PANKAJAVALLIYAMMA
              AGED 72 YEARS
              W/O. PURUSHOTHAMAN PILLAI,
              RESIDING AT THEKKEKKOOTTU VEEDU,
              MANGANAM P. O., KOTTAYAM DISTRICT - 686018.
     2        ANJU P. NAIR
              AGED 33 YEARS
              D/O. PURUSHOTHAMAN PILLAI,
              RESIDING AT THEKKEKKOOTTU VEEDU,
              MANGANAM P. O., KOTTAYAM DISTRICT - 686018.
              BY ADV R.NIKHIL


RESPONDENT:

              INDIRA DEVI
              AGED 60 YEARS
              D/O. GOWRI AMMA,
              RESIDING AT PURAYATTU KIZHAKKETHIL VEEDU,
              KAVUMBHAGOM MURI, KAVUMBHAGOM P. O.,
              THIRUVALLA TALUK,
              PATHANAMTHITTA DISTRICT - 689102.

     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 16.02.2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(C) NO. 313 OF 2022
                                      2

                                JUDGMENT

Dated this the 16th day of February, 2022

Petitioners, who are additional plaintiffs in

O.S.No.140/1997, are aggrieved in the matter of I.A.Nos.3/2021

and 4/2021 as per order dated 19.02.2021, whereby their prayer

to receive written statement to the counter claim filed by the

defendants in the suit was dismissed.

2. Heard the learned counsel for the petitioners on

admission.

3. It is submitted by the learned counsel for the

petitioners that the petitioners filed a petition before the trial

court to set aside ex parte decree passed in the counter claim

filed by the defendants along with a delay petition of 8 years.

But the learned Munsiff dismissed the same. Against which,

appeal as CMA 5/2021 is pending before the Sub Court,

Thiruvalla. It is submitted by the learned counsel for the

petitioners that Exts.P4 and P5 orders passed in the above

petitions are not appealable orders and therefore, the remedy

available is by filing petition under Article 227 of the OP(C) NO. 313 OF 2022

Constitution of India . The grievance expressed by the learned

counsel for the petitioners is that in the event the appeal is

allowed, then the written statement to the counter claim filed by

the defendants, if not accepted by the court, the plaintiffs, would

be prejudiced and they could not contend their case as against

the counter claim in its full vigorous.

4. Having considered the said aspect, I am of the view

that if a relief is granted to the petitioners to file fresh

application of this nature, in the event the appeal is allowed, the

grievance of the petitioners can be redressed. Therefore, I am

inclined to dispense with notice to the other side.

5. It is ordered that in the event of appeal is allowed and

the applications filed by the petitioners to set aside ex parte

decree passed in the counter claim is set aside, the petitioners

are at liberty to move similar steps for reception of written

statement in counter claim and dismissal of I.A.Nos.3/2021 and

4/2021 is not a bar for doing the said exercise, that too

untrammeled by the observations in Exts.P4 and P5.

This Original Petition stands disposed of as above. OP(C) NO. 313 OF 2022

It is made clear that this Court not any way interfered the

trial of the suit in any manner, in view of the judgment.

Registry is directed to forward a copy of this judgment to

the court below concerned, within seven days, for compliance

and information.

Sd/-

A. BADHARUDEEN JUDGE nkr OP(C) NO. 313 OF 2022

APPENDIX OF OP(C) 313/2022

PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE INTERLOCUTORY APPLICATION NUMBERED AS I.A.NO.3/2021 IN O.S.NO.140 OF 1997 ON THE FILES OF THE HON'BLE MUNSIFF'S COURT, THIRUVALLA.

Exhibit P2 A TRUE COPY OF THE INTERLOCUTORY APPLICATION NUMBERED AS I.A.NO.4/2021 IN O.S.NO.140 OF 1997 ON THE FILES OF THE HON'BLE MUNSIFF'S COURT, THIRUVALLA.

Exhibit P3 A TRUE COPY OF COMMON ORDER DATED 19.02.2021 PASSED BY THE HON'BLE MUNSIFF'S COURT, THIRUVALLA IN I.A.NO.10/2021 AND I.A.NO.11/2021 IN O.S.NO.140 OF 1997. Exhibit P4 A TRUE COPY OF THE ORDER DATED 19.02.2021 PASSED BY THE HON'BLE MUNSIFF'S COURT, THIRUVALLA IN I.A.NO.3/2021 IN O.S. NO.140 OF 1997.

Exhibit P5 A TRUE COPY OF ORDER DATED 19.02.2021 PASSED BY THE HON'BLE MUNSIFF'S COURT, THIRUVALLA IN I.A.NO.4/2021 IN O.S.NO.140 OF 1997. Exhibit P6 A TRUE COPY OF JUDGMENT DATED 19.02.2021 PASSED BY THE HON'BLE MUNSIFF'S COURT, THIRUVALLA IN O.S.NO.140 OF 1997.

Exhibit P7 A TRUE COPY OF PROCEEDINGS IN O.S.NO.140 OF 1997 ON THE FILES OF THE HON'BLE MUNSIFF'S COURT, THIRUVALLA.