Allowed

B.Sreelatha v. Gopakumari Amma

Kerala HC6 Aug 2012RSA/568/2012

Case brief

AI extract

What is this about?

This regular second appeal reversed the dismissal earlier of an application to set aside an ex-parte preliminary decree. The High Court held that the resulting final decree must also be set aside and remanded the matter to the trial court for expeditious disposal of the suit.

What did the court decide?

Final decree set aside; trial court directed to expedite suit proceedings and consider claim for stamp paper loss in final decree proceedings.

B.Sreelatha Vs Gopakumari Amma — Partition | 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 6TH DAY OF AUGUST 2012/15TH SRAVANA 1934

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RSA.NO. 568 OF 2012 ()

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AS.286/2009 OF THE FIRST ADDITIONAL DISTRICT COURT, KOLLAM IA.NO.3785/2008 IN OS.707/2003 OF PRINCIPAL MUNSIFF'S COURT, KOLLAM

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APPELLANT(S)/APPELLANT/9TH DEFENDANT:

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B.SREELATHA,, AGED 51 YEARS D/O.BHARGAVI AMMA,PRIVATE COLLEGE EMPLOYEE T.C.NO.20/1825,MAMPUZHA,THAMALAM.P.O POOJAPPURA,THIRUVANANTHAPURAM PRESENTLY RESIDING ATTHIRUVONAM,T.C.19/1194(2) THAMALAM,POOJAPPURA,THIRUVANANTHAPURAM.

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BY ADVS.SRI.T.KRISHNANUNNY (SR)

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SRI.K.N.CHANDRABABU

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RESPONDENT(S)/PLAINTIFF/DEFENDANTS 1 TO 8:

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1. GOPAKUMARI AMMA, W/O.C.C.PILLAI,RESIDING AT GOKULAM,T.C.20/1824 THAMALAM,POOJAPPURA,THIRUVANANTHAPURAM PIN-695012.

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2. ARAVINDAN NAIR @ RADHAKRISHNAN NAIR, ADVOCATE,MAMPUZHA,POOJAPPURA THAMALAM,PIN-695012,THIRUVANANTHAPURAM.

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3. P.SREEDHARAN NAIR,

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PARVATHY BHAVANAM,SREE RANGOM LANE,SASTHAMANGALAM THIRUVANANTHAPURAM,PIN-695010.

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4. R.GOPAKUMAR, RESIDING AT 153/B,APHP COLONY MOULI ALI BEHING MIG 19,HYDERABAD ANDHRA PRADESH-500040.

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R.S.A. No.568 of 2012

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5. R.VIJAY KUMAR, RESIDING AT ASWATHY,PAVITHRESWARAM.P.O KOLLAM DISTRICT,PIN-691624.

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6. R.UDAYAKUMAR, RESIDING AT ANANDA VILAS,PUNUKKANNOOR,PERUMPUZHA.P.O KUNDARA,PIN-691504.

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7. MADHAVIKUTTY AMMA @ OMANA AMMA, C/O.V.VELAPPAN NAIR,RETD.D.E.O,RESIDING AT MONIMEDIA PERUMPUZHA.P.O,KUNDARA,PIN-691504.

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8. SARASWATHY AMMA @ MEENAKSHI AMMA, RESIDING AT CHITHIRA,NEAR THAMALAM.P.O,POOJAPPURA THIRUVANANTHAPURAM-12.

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9. B.SREEKALA,

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RESIDING AT MAMPUZHA,THAMALAM,THIRUVANANTHAPURAM-12 NOW RESIDING AT C/O.MADHAVIKUTTY AMMA,MONIMEDA PERUMPUZHA.P.O,KUNDARA,KOLLAM-691504.

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BY ADV. SRI.ALEX N.MATHEW (KOLLAM) BY ADV. SRI.H.RAMANAN BY ADV. SRI.P.A.RABEEZ

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06-08-2012, 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.568 of 2012

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====================================

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Dated this the 06^th day of August, 2012

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J U D G M E N T

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The 9^th defendant in O.S. No.707 of 2003 of the court of learned Principal Munsiff, Kollam is the appellant before me.

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The 1^st respondent filed the suit for partition of plaint A and B schedules and for allotment of the 1/5^th share she claimed in the plaint A and B schedules. Appellant and defendants 2 to 9 remained absent in the suit. The 1^st respondent filed proof affidavit and proved Exts.A1 to A3, C1 and C2. Based on that, the trial court passed an ex parte preliminary decree for partition. The 1^st respondent filed I.A. No.3587 for passing a final decree. The trial court passed a final decree as well. Appellant-9^th defendant challenged that final decree in A.S. No.286 of 2009 before the First Additional District Court, Kollam. That appeal was dismissed. Hence this Second Appeal.

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I have heard learned counsel on both sides.

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It is pointed out by the learned counsel for the appellant that to set aside the ex parte preliminary decree, appellant had filed application in the trail court. That application

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R.S.A. No.568 of 2012

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-: 2 :-

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was dismissed against which the appellant filed C.M.A. No.21 of 1979 before the learned District Judge, Kollam. The C.M. Appeal was dismissed against which appellant filed O.P(C) No.1458 of 2011. This Court by judgment dated 05.06.2012 allowed the said Original Petition, set aside the judgment in C.M. Appeal No.71 of 2009 and allowed the application to set aside the ex parte preliminary decree.

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Learned counsel for the respondents has given me a copy of the said judgment.

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It is seen from the copy of the said judgment that Ext.P7, order on I.A. Nos.1299 and 1300 of 2009 to set aside the ex pare decree and condone delay are set aside, judgment in C.M. Appeal No.71 of 2009 is also set aside and consequently I.A. Nos.1299 and 1300 of 2009 are allowed. It follows that the ex parte preliminary decree is now no more. Therefore the final decree passed based on it should fall to the ground.

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It is pointed out by the learned counsel for the 1^st respondent that pursuant to the final decree, non-judicial stamp paper for Rs.74,800/- was purchased and on that stamp paper the final decree was engrossed. Consequence of setting aside the final decree is that the 1^st respondent is put to loss of

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R.S.A. No.568 of 2012

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-: 3 :-

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Rs.74,800/-. The 1^st respondent is entitled to be compensated for the said loss, it is argued.

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The learned counsel for the appellant has pointed out that in the judgment in O.P(C) No.1458 of 2011 it is observed that the said aspect could be considered while deciding this Second Appeal.

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Having heard the learned counsel on both sides I am inclined to think that the question whether the 1^st respondent is entitled to be compensated for the loss he has (allegedly) suffered on account of purchase of non-judicial stamp papers on which the final decree is engrossed (which is being set aside) could be relegated to the trail court for decision in the final decree proceedings in case the suit results in a preliminary decree. It will be open to the 1^st respondent to make a claim for the said amount in the final decree proceedings (in case a preliminary decree is passed) and if any such request is made the trial court shall decide upon the said request and pass appropriate orders/adjustment as the case may be. In the light of the setting aside of the preliminary decree, as aforesaid the final decree is only to be set aside.

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Resultantly, the Second appeal is allowed as under:

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R.S.A. No.568 of 2012

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-: 4 :-

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(i) The Judgment and decree of the learned Additional District Judge, Kollam in A.S. No.286 of 2009 are set aside.

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(ii) The final decree passed by the learned Principal Munsiff, Kollam on I.A. No.3785 of 2008 in O.S. No.707 of 2003 is set aside.

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(iii) I.A. No.3785 of 2008 will stand dismissed

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since preliminary decree stands set aside.

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(iv) The trial court is directed to expedite the proceedings in the suit having regard to the fact that it is of the year 2003.

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(v) If the parties have not already appeared

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in the trial court, they shall do so on 05.09.2012.

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All pending Interlocutory Applications will stand dismissed.

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THOMAS P. JOSEPH, JUDGE.

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vsv

B.Sreelatha v. Gopakumari Amma

Case brief

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B.Sreelatha v. Gopakumari Amma

Case brief

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