Kerala High Court
Nisar vs Treesa John Joseph on 21 May, 2024
Author: Kauser Edappagath
Bench: Kauser Edappagath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
OP(C) NO. 2339 OF 2023
ORDER IN IA 297/21 & 296/21 IN OS NO.37 OF 2012 OF PRINCIPAL
SUB COURT KOLLAM
PETITIONER/RESPONDENT/PLAINTIFF:
NISAR, AGED 47 YEARS
S/O KHALID KUTTY, RESIDING AT RAJEENA MANZIL,
PULIYOOR VANCHI VADAKKU MURI, THODIYOOR VILLAGE,
HOUSE NO. TP 455, WARD NO. II, KARUNAGAPPALLY
TALUK, KOLLAM DISTRICT, PIN - 690523
BY ADVS.A.JANI(KOLLAM)
NISA FASIL(KOLLAM)
RESPONDENTS/PETITIONER-1ST DEFENDANT & 2ND RESPONDENT-2ND
DEFENDANT:
1 TREESA JOHN JOSEPH, AGED 57 YEARS, W/O JOSEPH
BOSCO, RESIDING AT MANUEL NIVAS, MEENATHU CHERRY,
KAVANADU P.O, KOLLAM DISTRICT, PIN - 691003
2 MURALEE MANOHAR,AGED 60 YEARS, S/O GOPAL RAO,
RESIDING AT PUTHEN VEEDU, KUREEPPUZHA CHERRY,
KAVANADU P.O, SAKTHIKULANGARA VILLAGE, KOLLAM
DISTRICT, PIN - 691003
BY ADV G.VIDYA
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
21.05.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(C).No.2339/2023
-:2:-
JUDGMENT
Exts. P20 and P21 orders passed by the Principal Sub
Court, Kollam (for short the trial court) are under challenge in
this original petition.
2. The petitioner is the plaintiff in O.S.No.37/2012. The
suit was one for specific performance of the contract originally
filed against the 1st defendant. The property originally belonged
to the 1st defendant. The plaintiff and the 1 st defendant entered
into an agreement whereby the plaintiff agreed to purchase the
property from the 1st defendant. During the pendency of the
suit, it was noticed that the 1 st defendant had already alienated
the property to the 2nd defendant and accordingly, the 2nd
defendant was impleaded in the suit. An additional prayer was
incorporated by way of amendment to declare the transaction
between the 1st defendant and the 2nd defendant as null and void.
The defendants are the respondents in this original petition.
Both the defendant remained ex-parte and an ex-parte decree
was passed. The 1st defendant filed Exts. P4 and P6 applications
to set aside the ex-parte decree and also to condone the delay of
1372 days in filing the petition to set aside the ex-parte decree.
The trial court as per Exts.P20 and P21 orders allowed both
applications on payment of cost of ₹10,000/-. Those orders are
under challenge in this original petition.
3. I have heard both sides.
It is evident from the impugned orders that no summons
was served to the 1st defendant. The paper publication was
taken out and the 1st defendant was set ex-parte. Hence, I am of
the view that the trial court has properly exercised the discretion
to set aside the ex-parte decree and also to condone the delay. I
find no illegality or impropriety in the impugned orders.
However, it is made clear that the decree as against the 1 st
defendant alone stands set aside, inasmuch as the 2nd defendant
has not so far filed an application to set aside the ex-parte
decree. The original petition is dismissed with the above
observation.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
kp
APPENDIX OF OP(C) 2339/2023
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE AMENDED PLAINT IN
O.S. NO. 37 OF 2012 PREFERRED BEFORE
PRINCIPAL SUB COURT, KOLLAM
Exhibit P2 A TRUE COPY OF THE JUDGMENT IN O.S. NO.
37 OF 2012 BY THE PRINCIPAL SUB COURT,
KOLLAM ON 31/01/2018
Exhibit P3 A TRUE COPY OF THE DECREE IN O.S. NO. 37
OF 2012 OF THE PRINCIPAL SUB COURT,
KOLLAM DATED 31/01/2018
Exhibit P4 A TRUE COPY OF PETITION IN IA NO
296/2021 IN IN O.S. NO. 37 OF 2012 BY
THE PRINCIPAL SUB COURT, KOLLAM DATED
31/12/2021
Exhibit P5 A TRUE COPY OF OBJECTION IN IN I.A. NO.
PRINCIPAL SUB COURT, KOLLAM ON
26/02/2022
Exhibit P6 A TRUE COPY OF I.A. NO. 297 OF 2021 IN
O.S NO. 37 OF 2012 BY THE PRINCIPAL SUB
COURT, KOLLAM ON 26/02/2022
Exhibit P7 A TRUE COPY OF OBJECTION FILED BY THE
PETITIONER IN I.A. NO. 297 OF 2021 IN
O.S NO. 37 OF 2012 ON 26/02/2022 BY THE
PRINCIPAL SUB COURT, KOLLAM
Exhibit P8 OF CHIEF EXAMINATION ON 08/03/2023 AND
CROSS- EXAMINATION CONDUCTED ON
09/08/2023 IN O.S NO. 37 OF 2012 BY THE
PRINCIPAL SUB COURT, KOLLAM
Exhibit P9 A TRUE COPY OF THE LEASE AGREEMENT DATED
19/09/2018 PRODUCED BY THE FIRST
RESPONDENT
Exhibit P10 A TRUE COPY OF THE LEASE AGREEMENT DATED
14/08/2019 PRODUCED BY THE FIRST
RESPONDENT
Exhibit P11 A TRUE COPY OF THE LEASE AGREEMENT DATED
17/07/2020
Exhibit P12 A TRUE COPY OF THE LEASE AGREEMENT DATED
25/08/2021 PRODUCED BY THE FIRST
RESPONDENT
Exhibit P13 A TRUE COPY OF THE LETTER FROM AXIS BANK
PRODUCED BY THE FIRST RESPONDENT
Exhibit P14 A TRUE COPY OF THE BSNL BILL DATED
27/04/2013 PRODUCED BY THE FIRST
RESPONDENT
Exhibit P15 A TRUE COPY OF THE BLOOD RESULTS FROM
LOURDES HOSPITAL DATED 05/07/2015
PRODUCED BY THE FIRST RESPONDENT
Exhibit P16 A TRUE COPY OF THE RESIDENTIAL
CERTIFICATE DATED 20/03/2019 PRODUCED BY
THE FIRST RESPONDENT
Exhibit P17 A TRUE COPY OF THE DISCHARGE BILL DATED
05/07/2015 ISSUED BY LOURDES HOSPITAL,
ERNAKULAM PRODUCED BY THE FIRST
RESPONDENT
Exhibit P18 A TRUE COPY OF THE AADHAR OF THE FIRST
RESPONDENT
Exhibit P19 A TRUE COPY OF THE DEPOSITION WITH CHIEF
AFFIDAVIT OF THE PETITIONER IN O.S NO.
37 OF 2012 BY THE PRINCIPAL SUB COURT,
KOLLAM
Exhibit P20 A TRUE COPY OF ORDER DATED 27/09/2023 IN
I.A. NO. 297 OF 2021 IN O.S 37 OF 2012
OF THE PRINCIPAL SUB COURT KOLLAM
Exhibit P21 A TRUE COPY OF COMMON ORDER DATED
27/09/2023 IN IA NO 296/2021 IN I.A. NO.
297 OF 2021 IN O.S 37 OF 2012 OF THE
PRINCIPAL SUB COURT KOLLAM
RESPONDENT EXHIBITS
Exhibit- R1(A) The true copy of the sale deed No.
4232/2000 dated 30.10.2000 of SRO,
Kollam
