Kerala High Court
Hafsath Pandarakkandi vs State Of Kerala 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. 2984 OF 2019
AGAINST THE ORDER/JUDGMENT DATED IN ARC NO.2323 OF 2012 OF
MUNSIFF COURT, MANJERI
PETITIONER/PETITIONER/PLAINTIFF:
HAFSATH PANDARAKKANDI
AGED 47 YEARS, D/O.ALAVIKUTTY,
CHELAKKAL HOUSE, KOYAPPAN VALAVU,
NILAMBUR, NALLAM THANNI.P.O.,
NILAMBUR, MALAPPURAM DISTRICT.
BY ADVS.
K.M.SATHYANATHA MENON
SMT.KAVERY S THAMPI
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 STATE OF KERALA,
REPRESENTED BY THE DISTRICT COLLECTOR,
MALAPPURAM-676505.
2 THE ASSISTANT REGISTRAR OF CO-OPERATIVE
SOCIETIES (GENERAL), MANJERI,
MALAPPURAM-676121.
3 NILAMBUR SERVICE CO-OPERATIVE BANK LIMITED.
REPRESENTED BY ITS SECRETARY,
NILAMBUR.P.O.,
MALAPPURAM DISTRICT, PIN-679312.
BY ADVS.
SRI.M.M.MONAYE
SRI.M.PAUL VARGHESE
SMT.BINCY JOSE
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. 2984/2019
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JUDGMENT
The return of a plaint instituted by the petitioner as an indigent person
invoking Order 33 Rule 1 of the Code of Civil Procedure on the ground that
the Court has no jurisdiction to entertain the suit as well as the indigent
petition is under challenge in this original petition.
2. The 3rd respondent herein obtained an award against the
petitioner as ARC No.2323/2012 from the 2nd respondent. The said award was
unsuccessfully challenged by the petitioner herein in appeal and also before
this Court in writ proceedings. Thereafter, the award was sought to be
executed and E.P.No.405/2015 has been filed before the Munsiff Court of
Manjeri. It is submitted that the sale was confirmed and E.P. was closed. It is
further submitted that another E.P. filed for delivery is still pending.
3. While so, the petitioner herein filed Ext.P2 suit under Order 33
Rule 1 of the CPC against the 3 rd respondent and others alleging that the
award in ARC No.2323/2012 has been obtained by fraud and collusion. The
prayer in Ext.P2 is to permit the petitioner to sue as a pauper and to declare
that the decree obtained by the 3rd respondent in ARC No.2323/2012 is the
result of fraud and further to declare that the 3 rd respondent has no right to set
aside the decree. The learned Munsiff returned the plea/petition holding that
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the court has no jurisdiction to entertain the petition. It is challenging the said
order, the petitioner has approached this Court.
3. I have heard both sides.
4. It is true that the award in ARC No.2323/2012 has become final.
It is also true that the petitioner challenged the award in ARC No.2323/2012
before the statutory appellate forum and also in the writ petition filed before
this Court under Article 226 of the Constitution of India but she could not
succeed. It was much thereafter the petitioner instituted a suit that too as an
indigent O.P. to set aside the award on the ground that it had been obtained by
fraud and collusion. For the simple reason that the suit has been instituted by
the petitioner to set aside the award after unsuccessfully exhausting all the
statutory remedies, it cannot be said that the civil court has no jurisdiction to
entertain such a suit. Section 9 of the CPC clearly laid down that, civil courts
shall have jurisdiction to try all suits of a civil nature excepting suits of which
their cognizance is either expressly or impliedly barred. A suit to set aside an
award passed by the Registrar of the Co-operative Societies on the ground of
fraud and collusion, can only be instituted before a civil court invoking
Section 9 of the CPC. A suit of such a nature is not expressly or impliedly
barred by the Co-operative Societies Act or any other law. Hence, it has to
be held that Ext.P2 plaint is maintainable before the civil court. Accordingly,
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the impugned order returning Ext.P2 is set aside. The Munsiff Court, Manjeri
is directed to number the indigent O.P. and proceed further, in accordance
with law. It is made clear that this judgment will not stand in the way of the
execution court proceeding with the delivery proceedings in the execution
petition.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
APA
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APPENDIX OF OP(C) 2984/2019
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE ORDER IN I.A.NO.1212 OF
2019 IN INDIGENT OP.NO. OF 2019 IN
INDIGENT O.S.NO. OF 2019 (WRONGLY SHOWN
AS A.R.C.NO.2323 OF 2012) DATED
19.8.2019.
EXHIBIT P2 TRUE COPY OF THE PLAINT PREFERRED BY THE
PETITIONER AS INDIGENT O.S.NO...../2019
WITH INDIGENT O.P.NO..../2019 ON THE
FILES OF THE MUNSIFF COURT, MANJERI.
RESPONDENT EXHIBITS
EXHIBIT: R3(A) TRUE COPY OF THE JUDGMENT DATED 22.3.2017
EXHIBIT: R3(B) TRUE COPY OF THE PRINT OUT OF THE DAILY
STATUS DATED 16.2.2023 OF THE
EP/0000405/2015 IN THE MUNSIFF COURT,
MANJERI, TAKEN FROM THE E COURT SERVICES
EXHIBIT: R3(C) TRUE COPY OF THE PRINT OUT OF THE DAILY
STATUS DATED 22.5.2023 OF THE
EP/0000405/2015 IN THE MUNSIFF COURT,
MANJERI, TAKEN FROM THE E COURT SERVICES
EXHIBIT: R3(D) TRUE COPY OF THE PRINT OUT OF THE DAILY
STATUS DATED 14.7.2023 OF THE
EP/0000405/2015 IN THE MUNSIFF COURT,
MANJERI, TAKEN FROM THE E COURT SERVICES
EXHIBIT: R3(E) TRUE COPY OF THE PRINT OUT OF THE DAILY
STATUS DATED 14.8.2023 OF THE
EP/0000405/2015 IN THE MUNSIFF COURT,
MANJERI, TAKEN FROM THE E COURT SERVICES
EXHIBIT: R3(F) TRUE COPY OF THE ORDER DATED 5.9.2023 IN
THE EXECUTION PETITION NO.405/2015 IN THE
MUNSIFF COURT, MANJERI
