LISSY JOSE Vs. USHAKUMARI @ SAKUNTHALA

JUDGEMENT

(1.) The petitioners are the plaintiffs in a suit for prohibitory and mandatory injunction. The dispute in the suit centers around a pathway. The first defendant raised a counter claim. The fourth defendant remained ex parte in the suit. The suit went for trial. The suit was decreed and the counter claim was dismissed. Thereafter, the fourth defendant filed an application to set aside the ex parte decree and for condoning the delay of 1050 days in filing the application. She also sought for restoration of the counter claim filed by the first defendant. The court below as per the impugned order allowed the application, set aside the ex parte decree and restored the counter claim.

(2.) The fourth defendant who was the petitioner in the application is the wife of the first defendant. The second defendant is the brother of the first defendant. Defendants 1 and 2 had contested the suit. The alleged illness put forward by the fourth defendant as a ground for not having prosecuted the suit, as is revealed by the medical records, was during the period 2016-17. Added to all this, the fact remains that the counter claim which is now restored as per the impugned order was raised by the first defendant as against the plaintiff. The counter claim was dismissed after full-fledged trial and has ended in a decree. As per the impugned order, the said counter claim has been "restored". Obviously, there has been non consideration of the relevant aspects and an erroneous exercise of jurisdiction by the court below.

(3.) In the circumstances, I set aside the impugned order and direct the court below to consider and pass fresh orders on the application after affording adequate opportunity to both sides to substantiate their contentions. The same shall be done within a period of three months from the date of receipt of a copy of this judgment.