IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 20TH OCTOBER 2009 / 28TH ASWINA 1931 WP(C).No. 35627 of 2008(N) -------------------------- EP 1/98 IN OS.695/1994 of I ADDL.SUB COURT,TRIVANDRUM .................... PETITIONER: --------------- KERALA POLICE HOUSING CO-OPERATIVE SOCIETY LTD., NO.4348, ERNAKULAM, KOCHI-20, REPRESENTED BY ITS SECRETARY. BY ADV. SRI.N.JAMES KOSHY RESPONDENTS: --------------- 1. M.E.JOSE, S.B.ASSISTANT (RETIRED), WORKING UNDER THE OFFICE OF THE SUPERINTENDENT OF POLICE, SPECIAL BRANCH CID, THIRUVANANTHAPURAM, NOW RESIDING AT TC 26/644, MUNDAKKAL HOUSE, OOTTUKUZHY LANE, THIRUVANANTHAPURAM. 2. Y.ANIL KUMAR, IPS, C/O.SHRI.P.SEETHA RAMAIAH, NO.8/2/294/K-26, PLOT NO.26, KAMALAPURI COLONY, PHASE III, HYDERABAD, ANDHRA PRADESH 500 073. 3. R.SARALAMONY, SB ASST.GRADE-1, SBCID CHIEF OFFICE, THIRUVANANTHAPURAM. ADV. SRI.PRAVEEN VYASAN FOR R1 SRI.T.RAJASEKHARAN NAIR FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX(WPC 35627/08) PETITIONER'S EXTS.: EXT.P1: TRUE COPY OF THE COMMUNICATION DATED 20.1.94 SENT BY THE PETITIONER TO THE 1ST RESPONDENT. EXT.P2: TRUE COPY OF THE COMMUNICATION DATED 27.1.1994 SENT BY THE PETITIONER TO SUPDT. OF POLICE, SBCID, VELLAYAMBALAM. EXT.P3: TRUE COPY OF THE LETTER DATED 8.2.1994 SENT BY THE 1ST RESPONDENT TO THE PETITIONER. EXT.P4: TRUE COPY OF THE COMMUNICATION DATED 9.2.1994 SENT BY THE PETITIONER TO SUPDT. OF POLICE, SBCID, THIRUVANANTHAPURAM. EXT.P5: TRUE COPY OF THE REALLOTMENT ORDER DATED 28.2.1994 SENT BY THE PETITIONER TO THE 2ND RESPONDENT. EXT.P6: TRUE COPY OF THE REALLOTMENT ORDER DATED 30.6.1994 ISSUED TO THE THIRD RESPONDENT BY THE PETITIONER. EXT.P7: TRUE COPY OF THE NOTICE DATED 9.6.1994 ISSUED ON BEHALF OF THE PETITIONER SOCIETY THROUGH THEIR LAWYER P.SANTHALINGAM. EXT.P8: TRUE COPY OF THE SUIT AS O.S.NO.695/94 FILED BY THE 1ST RESPONDENT BEFORE THE SUB COURT, THIRUVANANTHAPURAM ON 29.6.1994. EXT.P9: TRUE COPY OF THE I.A.NO.2923/94 DATED 29.6.1994 IN O.S.NO.695/94 FILED BY THE 1ST RESPONDENT BEFORE THE SUB COURT, THIRUVANANTHAPURAM. EXT.P10: TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER IN EXT.P9 I.A. EXT.P11: TRUE COPY OF THE ORDER DATED 24.8.94 OF THE SUB COURT, THIRUVANANTHAPURAM. EXT.P12: TRUE COPY OF THE EX PARTE DECREE DATED 10.8.95 IN O.S.NO.695/94 OF THE SUB COURT, THIRUVANANTHAPURAM. EXT.P13: TRUE COPY OF THE EX PARTE JUDGMENT DATED 19.8.95 IN O.S.NO.695/94 OF THE SUB COURT, THIRUVANANTHAPURAM. EXT.P14: TRUE COPY OF THE I.A.NO.11174/95 IN O.S.NO.695/94 FILED BY THE PETITIONER BEFORE THE SUB COURT, TRIVANDRUM. EXT.P15: TRUE COPY OF THE ORDER DATED 4.7.19997 IN I.A.NO.11174/95 IN O.S.695/94 OF THE SUB COURT, THIRUVANANTHAPURAM. EXT.P16: TRUE COPY OF THE JUDGMENT DATED 14.8.98 IN CMA NO.67/98 OF THE DISTRICT JUDGE, TRIVANDRUM. EXT.P17: TRUE COPY OF THE ORDER DATED 4.2.1999 IN CMP NO.633/99 IN CRP NO.275/99 OF THE HON'BLE HIGH COURT OF KERALA. WPC 35627/08 EXT.P18: TRUE COPY OF THE ORDER DATED 17.12.2004 IN CRP NO.275/99 OF THE HON'BLE HIGH COURT OF KERALA. EXT.P19: TRUE COPY OF THE I.A.NO.3408/96 IN O.S.NO.695/94 FILED BY THE PETITIONER BEFORE THE SUB COURT, TRIVANDRUM. EXT.P20: TRUE COPY OF THE I.A.NO.3409/96 IN O.S.NO.695/94 FILED BY THE PETITIONER BEFORE THE SUB COURT, TRIVANDRUM. EXT.P21: TRUE COPY OF THE I.A.NO.3410/96 IN O.S.NO.695/94 FILED BY THE PETITIONER BEFORE THE SUB COURT, TRIVANDRUM. EXT.P22: TRUE COPY OF THE COMMON ORDER DATED 6.10.2008 DISMISSING THE EXHIBITS 19 TO 21 APPLICATIONS IN O.S.NO.695/94 BY THE SUB COURT, TRIVANDRUM. RESPONDENT'S EXTS.(THIRD RESPONDENT): EXT.R3(a): A TRUE PHOTOCOPY OF THE SALE DEED EXECUTED BY THE PETITIONER IN FAVOUR OF THIS RESPONDENT. EXT.R3(b): A TRUE PHOTOCOPY OF THE OBSTRUCTION PETITION FILED BY THE 3RD RESPONDENT BEFORE THE SUB COURT, THIRUVANANTHAPURAM. S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.35627 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 20th October, 2009 JUDGMENT The Writ Petition is filed seeking the following reliefs: 1. To set aside Exhibit P22 common order of the learned I Addl. Sub Judge, Thiruvananthapuram and to allow Exhibits P19, P20 and P21 Interlocutory Applications in O.S.No.695 of 1994. 2. To declare that Exhibit P12 ex parte decree and Exhibit P13 ex parte judgment and Exhibit P15 order passed by the learned I Addl. Sub Judge, Thiruvananthapuram are null and void and unenforceable. 3. To direct learned I Addl. Sub Judge, Thiruvananthapuram to reconsider Exhibits P19, P20 and P21 petitions in accordance with law. 4. To stay all further proceedings in E.P.No.1/1998 in O.S.No.695/1995 on the files of the learned I Addl. Sub Judge, Thiruvananthapuram. 2. Petitioner is a Housing Co-operative Society registered under the Kerala Co-operative Societies Act, 1969. The first respondent, to whom three plots had been allotted by the Society, on cancellation of such allotment, instituted a suit as O.S.No.695 of 1994 W.P.C.No.35627/08 - 2 - before the Sub Court, Trivandrum seeking a decree of declaration of his right and possession over such lands and for specific performance of transfer of the rights over such lands in his favour and for other reliefs. P8 is the copy of the plaint in that suit. An ex parte decree was passed against the petitioner/defendant in the suit in favour of the first respondent. P12 is the copy of that decree and P13 is the copy of the judgment. Petitioner filed an application for setting aside that ex parte decree under Order 9 Rule 13 of the Code of Civil Procedure. P14 is the copy of that application. When that petition was posted for enquiry, the petitioner remaining absent, it was dismissed for default. P15 is the copy of that order. Petitioner challenged P15 order filing an appeal as C.M.A.No.67 of 1998 before the District Court, Trivandrum. The appeal was dismissed vide P16 order as not maintainable holding that his remedy was to move an application for restoration of the petition dismissed for default. P16 order was challenged by way of a revision as C.R.P.No.275 of 1999 before this court and it was dismissed vide P18 order. Thereafter, the petitioner moved P22 application to restore P14 dismissed for default with a petition to condone the delay of 3282 days in moving such restoration application. P20 is the copy of the petition filed to condone the delay. W.P.C.No.35627/08 - 3 - An application to stay the proceedings in execution from the ex parte decree was also moved in the above proceedings and P19 is copy of that petition. The learned Sub Judge considered all the three petitions, P19 to P21, together and after hearing the counsel on both sides dismissed them by P22 common order. Propriety and correctness of P22 order is challenged in the Writ Petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. Learned counsel for the petitioner assailed P22 order of the court below on two grounds. The first ground is that the decree passed against a Co-operative Housing Society which is governed by the Kerala Co-operative Societies Act was a nullity and that ought to have been taken note of by the court in considering the merit of the application moved for restoring the application filed to set aside the ex parte decree after condoning the delay, and further, the delay in moving such application ought to have been condoned taking note that the petitioner was bonafide prosecuting the appeal and revision, though unsuccessfully, against the previous order dismissing his application for restoration for default. I do not find any merit in the grounds canvassed by the W.P.C.No.35627/08 - 4 - learned counsel. The first respondent, as seen from P8 plaint, P12 decree and P13 judgment rendered in the suit, has claimed right and possession over an immovable property and for other reliefs against the Co-operative Housing Society; the adjudication of disputes thereof can be done only by the civil court and not by any authority under the Co-operative Societies Act. Section 100 of the Co-operative Societies Act carves out an exemption over disputes involving immovable property, which require to be adjudicated by a civil court, and so much so, the plea of nullity of the decree canvassed to lend assistance to the application moved by the petitioner is of no merit. Similarly, the delay in moving the application for restoration canvassing a case that petitioner was bonafide prosecuting an appeal and revision has not been substantiated by any material whatsoever before the court. No evidence was let in the court to explain the delay leave alone the bonafides in prosecuting the appeal and revision. So much so, I do not find any illegality or impropriety in P22 common order passed by the court below declining to condone the delay in moving the restoration application with the result of dismissing the delay petition and also the restoration application. The court below has imposed a cost of Rs.2000/- on the petitioner while dismissing W.P.C.No.35627/08 - 5 - the applications, directing it to deposit the sum within two weeks. The imposition of cost fixed by the court below holding that the petitioner has abused the process of law despite the procedure being pointed out by the District Court in appeal cannot be approved. Filing of revision by the petitioner against the judgment rendered in the appeal by the District Court by itself will not constitute an abuse of process of the court though such revision was not entertainable, and later dismissing it holding so. Order of the cost imposed by the court below shall stand set aside and, if any amount had been deposited by the petitioner pursuant to the orders of the court below, it shall be refunded. Subject to the modification with respect to the order of cost and that alone as indicated above, the Writ Petition is closed. srd S.S. SATHEESACHANDRAN, JUDGE