Dismissed

Nazeer v. Beema Beevi

Kerala HC9 Apr 2012RSA/19/2012

Case brief

AI extract

What is this about?

In this second appeal, the appellant challenged an ex parte eviction decree, asserting applicability of a local Panchayat Act. The court held no such notification existed and dismissed the appeal, ruling that grounds for setting aside an ex parte decree under Order IX Rule 13 cannot be urged in an appeal. The appeal was dismissed.

What did the court decide?

The Second Appeal and all pending interlocutory applications were dismissed.

Nazeer Vs Beema Beevi — Property and Title | Kerala HC (2012)

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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

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MONDAY, THE 9TH DAY OF APRIL 2012/20TH CHAITHRA 1934

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RSA.No. 19 of 2012 ()

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AS.78/2009 of SUB COURT,NEYYATTINKARA OS.933/2006 of II ADDL.MUNSIFF COURT,NEYYATTINKARA

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APPELLANT(S)/APPELLANT/DEFENDANT:

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NAZEER

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S/O.ABDUL KARIM,AGED 43 YEARS KADAYARAVILAKATHU VEEDU,NEAR MARKET,BALARAMAPURAM ANTHIYOOR DESOM,KOTTUKAL VILLAGE, THIRUVANANTHAPURAM DISTRICT.

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BY ADVS.SRI.T.P.SANTHOSH KUMAR SRI.V.S.KOCHANI

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RESPONDENT(S)/RESPONDENT/PLAINTIFF:

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BEEMA BEEVI, D/O.SAFIYA BEEVI,AGED 52 YEARS,MILAD MANZIL KALLAMBALAM,ANTHIYOOR DESOM,ANTHIYOOR VILLAGE REPRESENTED BY POWER OF ATTORNEY HOLDER SHARAFUDHEEN S/O.AHAMMED KANNU,'FIRDOUSE',THERIYIL VARUVILAKAM, VAZHIMUKKU,BALARAMAPURAM.P.O,PIN-695501, THIRUVANANTHAPURAM DISTRICT.

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BY ADV. SRI.B.KRISHNA MANI(CAVEATOR)

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09-04-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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THOMAS P. JOSEPH, J.

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R.S.A. No.19 of 2012

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Dated this the 9^th day of April, 2012. JUDGMENT

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In the nature of the substantial question raised for a decision, it is not necessary to call for records of the case and hence it is dispensed with.

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The second appeal arises from the judgment and decree of learned Sub Judge, Neyyattinkara in A.S.No.78 of 2009 confirming the decree declaring title of respondent and allowing eviction of appellant from plaint B schedule shoproom in O.S.No.933 of 2006 of the court of learned Additional Munsiff-II, Neyyattinkara.

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Respondent/plaintiff claimed that the building belonged to her and that it was entrusted to the appellant on rental arrangements on 05.09.2001. Appellant filed written statement challenging the claim of respondent but did not appear when the case was taken up for trial in the list on 18.10.2008. Learned Additional Munsiff posted the case on 20.10.2008. That day, respondent was present but again, appellant remained absent. The case was posted on 23.10.2008. That day appellant was set exparte and evidence of the respondent was recorded. On 28.10.2008 learned Additional Munsiff granted a decree in favour of respondent.

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RSA No.19/2012

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Appellant did not file any application to set aside the exparte decree as provided under Rule 13 of Order IX of the Code of Civil Procedure (for short, “the Code”). Instead, he challenged the judgment and decree in A.S.No.78 of 2009. Learned Sub Judge relied on the oral and documentary evidence produced by the respondent including Ext.A8, rent deed executed by the appellant concerning the building in question and confirmed judgment and decree of the trial court. Hence this Second Appeal.

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The following substantial question of law is raised in this Second

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Appeal:

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“Whether the civil court could, in the absence of defendant grant an exparte decree for eviction if he is entitled to the protection of Act 2 of 1965?”

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The above substantial question of law was raised on the assertion of respondent that Act 2 of 1965 was been extended to the Balaramapuram Grama Panchayat where the building is situated. There could be no doubt that if the Act were made applicable to the place where the building is situate, then whether or not appellant contested the suit, the civil court has no jurisdiction to entertain the suit. Learned counsel for appellant had offered to produce a copy of notification which according to the appellant made the provisions of the said Act applicable to the said Grama Panchayat. But, when the appeal is taken up this day, learned counsel submitted that his counter part at Thiruvananthapuram

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RSA No.19/2012 3

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had searched for the notification but, so far it has not been sent up. Learned counsel for respondent asserts that there is no notification extending the provisions of Act 2 of 1965 to the Grama Panchayat referred to above and hence the suit is maintainable in the civil court.

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Since no notification is produced before me in spite of grant of sufficient time and learned counsel for respondent asserts which I do not find reason to reject, that there is no such notification extending the provisions of Act 2 of 1965 to the Balaramapuram Grama Panchayat I am unable to find in favour of appellant that Act 2 of 1965 could be applied and he is entitled to the protection of the said Act.

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So far as challenge to the exparte decree on other grounds which the appellant could have raised in an application under Rule 13 of Order IX of the Code is concerned, though a Division Bench in Ajith Mathews v. Sheelamma Thomas (2011 (2) KLT 225) has held that an appeal would lie from an exparte decree as well, the said decision is explained, in view of the decision of the Supreme court in Bhanu Kumar v. Archana Kumar

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(2005 (1) KLT 456) in Brijitha v. Kuttiyamma (2012 (1) KLT 661) .

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Hence none of the grounds which appellant could have urged in an application under Rule 13 of Order IX of the Code could be urged in an appeal against the exparte decree filed under Sec.96(2) of the Code.

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RSA No.19/2012

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Substantial question of law raised is answered as above.

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Second Appeal fails. It 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

Nazeer v. Beema Beevi

Case brief

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Nazeer v. Beema Beevi

Case brief

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