Dismissed

Kumaran v. Vijayalakshmi

Kerala HC4 Jul 2011CRP/308/2011

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a revision petition seeking to quash an order by the Principal Sub Judge allowing restoration of a partition suit dismissed for default. The High Court exercised judicial restraint, finding no grounds to interfere with the trial court's discretionary decision to grant another opportunity despite doubts about the bona fides of the applicant's explanation for absen

What did the court decide?

Petition is dismissed. All pending Interlocutory Applications will stand dismissed.

Kumaran Vs Vijayalakshmi — Property and Title | Kerala HC (2011)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 4TH JULY 2011 / 13TH ASHADHA 1933 CRP.No. 308 of 2011()

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------------------------------AGAINST THE ORDER DATED 27/05/2011 IN IA 809/11 IN OS.NO. 248/2008 of PRINCIPAL SUB COURT, PALAKKAD

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REVN. PETITIONER(S): RESPONDENT/1ST DEFENDANT --------------------------------------------------------------------------------

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KUMARAN, S/O.MAYYAN, PETTIMADA, VANNUR, KUTTASSERY, ALATHUR, PALAKKAD DISTRICT.

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BY ADVS. SRI.HARISANKAR V. MENON SMT.MEERA V.MENON SRI.MAHESH V.MENON

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RESPONDENT(S): PLAINTIFF/DEFENDANTS 2 & 3

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------------------------------------------------------------------------

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1. VIJAYALAKSHMI, W/O.UNNIKRISHNAN, RESIDING AT MELE VEEDU, PERUVAYIPANCHALLA, EDUPPUKULAM, MENONPARA, PALAKKAD DISTRICT, PIN -678 556.

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2. THE SPECIAL DEPUTY COLLECTOR, SCAD & COMPETENT AUTHORITY, NH 47, PALAKKAD, PIN- 678 001.

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3. UNION OF INDIA, REPRESENTED BY SECRETARY, UNION OF INDIA, NEW DELHI, PIN -110 001.

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THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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sts

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THOMAS P. JOSEPH, J.

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C.R.P.No. 308 of 2011

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Dated this the 4^th day of July, 2011.

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ORDER

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Petitioner is the first defendant in O.S.No.248 of 2008 of the court of learned Principal Sub Judge, Palakkad. That is a suit for partition filed by the first respondent claiming half share of the property. That suit was resisted by petitioner contending that the property sought to be partitioned is his selfacquisition and that first respondent has no right over the property. The case was posted on 03.02.2011. That day counsel for first respondent reported 'no instruction'. Thereon the suit was dismissed for default. Within 30 days of the dismissal the first respondent filed I.A.No.809 of 2011 for restoration of the suit stating that since her husband was lying paralyzed for two days before 03.02.2011, she could not appear in court and prosecute the case. That application was resisted by petitioner on various grounds including that attempt of first respondent is to drag the suit. Learned Principal Sub Judge observed that though he is not very much impressed by the reason stated by first respondent for her absence on 03.02.2011, justice required that she must be given an opportunity to prosecute the suit and accordingly allowed I.A.No.809 of 2011 on terms of cost of `.3,000/-. That order is under challenge. Learned counsel has contended that in view of the finding learned Principal Sub Judge has already entered that reason stated by first respondent is not correct, dismissal of the application should have followed. It is also submitted by learned

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CRP No.308/2011

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counsel that the case stood posted on 22.10.2010 for steps (before posting the case for trial in the list) but no steps were taken by the first respondent which indicated lack of bona fides in her claim that she could not appear on 03.02.2011 on account of illness of her husband. It is pointed out that petitioner is the brother of first respondent and he is well aware of the fact that plea of hospitalization of husband of first respondent is not correct.

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It is true that learned Principal Sub Judge has observed that the first respondent did not adduce evidence (on I.A.No.809 of 2011) and the reason stated by her is not fully convincing. It is not as if learned Principal Sub Judge has found against the reason stated by first respondent. Learned Principal Sub Judge however thought that having regard to the facts and circumstances of the case first respondent must be given an opportunity to adduce evidence in support of her case. That decision in my view is in tune with the observations made by this Court in Sreedhara Kurup v. Mickel (1968

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KLT 599) . I must also bear in mind that within 30 days of dismissal of the suit, first respondent has filed application for restoration. Having regard to these aspects of the matter I find no reason to interfere with the discretionary jurisdiction exercised by the learned Principal Sub Judge. It is open to the petitioner to request learned Principal Sub Judge to post the case for trial in the

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CRP No.308/2011

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list and dispose of the same as early as possible. If any such request is made learned Principal Sub Judge shall consider the same and take appropriate decision in the matter.

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Petition is dismissed.

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All pending Interlocutory Applications will stand dismissed.

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THOMAS P.JOSEPH, Judge.

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cks

Kumaran v. Vijayalakshmi

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Kumaran v. Vijayalakshmi

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