Allowed

Subhashini v. Balan

Kerala HC4 Mar 2013CRP/38/2013

Case brief

AI extract

What is this about?

The High Court allowed a civil revision petition setting aside an order dismissing an application to set aside an ex parte decree for lack of appearance. The Court trimmed technicalities, allowing condonation of minor delay and minor procedural lapses, imposing a conditional order to deposit costs.

What did the court decide?

The order setting aside the dismissal and ex parte decree is set aside conditionally upon deposit of Rs. 5,000 as costs.

Subhashini Vs Balan — Property and Title | Kerala HC (2013)

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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 4TH DAY OF MARCH 2013/13TH PHALGUNA 1934

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CRP.No. 38 of 2013 () --------------------CMA.28/2011 of SUB COURT, NEDUMANGAD O.S.NO.262 OF 2008 OF PRINCIPAL MUNSIFF'S COURT, NEDUMANGAD I.A.NO.4625 OF 2010 OF PRINCIPAL MUNSIFF'S COURT, NEDUMANGAD

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REVISION PETITIONER(S)/APPELLANTS/PLAINTIFFS:

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SUBHASHINI, D/O.GOMATHY AGED 50 YEARS AMBEDKAR COLONY, CHELLAPPACHA COLONY BHARATHANNOOR ANAND MURI, PANGODE VILLAGE THIRUVANANTHAPURAM.

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MANIAN AGED 64 YEARS AMBEDKAR COLONY, CHELLAPPACHA COLONY BHARATHANNOOR ANAND MURI, PANGODE VILLAGE THIRUVANANTHAPURAM. BY ADVS.SRI.D.SAJEEV SMT.LIGEY ANTONY

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RESPONDENT/RESPONDENT/DEFENDANT:

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BALAN, S/O.ANANDAN, AGED 71 YEARS CHELLAMPPACHA COLONY, BLOCK NO.6 BHARATHANNOOR ANAD MURI, PANGODE VILLAGE THIRUVANANTHAPURAM-695121 BY ADV. SRI.V.R.GOPU BY ADV. SRI.J.NARAYANA PILLAI

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THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04-03-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRP.No. 38 of 2013 ()

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APPENDIX

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PETITIONERS' EXHIBITS:

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ANNEXURE	1 :	JUDGMENT DTD 11.09	.2012	IN C.M.A.No.28 OF 2011
		ON the FILE OF THE	SUB	COURT, NEDUMANGAD
ANNEXURE	III:	ORDER DTD 10.06.20	11 IN	I.A.NO.4625 OF 2010 IN
		O.S.NO.262 OF 2008	ON t	he FILE OF THE PRINCIPAL
		MUNSIFF'S COURT, N	EDUMA	NGAD

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RESPONDENT'S EXHIBITS: NIL

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true copy /

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P.A to Judge

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THOMAS P.JOSEPH, J.

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

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C.R.P.No.38 of 2013

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============================ Dated this the 04^th day of March, 2013

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O R D E R

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Petitioners filed O.S.No.262 of 2008 in the Principal Munsiff's Court, Nedumangad for a decree for prohibitory injunction against respondent trespassing into the suit property, committing waste or destroying the boundaries etc. Respondent, apart from resisting that suit raised a counter claim for a declaration of title over 54 cents in resurvey No.38616-1.

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On 14.06.2010 the suit was dismissed for default and the counter claim was decreed ex parte due to the absence of petitioners.

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Petitioners filed I.A.No.4625 of 2010 to set aside dismissal of the suit and the ex parte decree on the counter claim after condoning delay of 136 days in filing that application. Learned Munsiff dismissed the application vide order dated 10.06.2011. Learned Sub Judge, Nedumangad confirmed that order in C.M.A.No.28 of 2011. Hence this civil revision.

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It is contended by the learned counsel that during the time the case was taken up for trial in the list, first petitioner was laid up due to Paralysis and could not attend the Court. She was

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C.R.P.No.38 of 2013

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looking after the case since second petitioner was working as a coolie in Waynad. Hence absence of petitioners in the trial court on the relevant day. For the above said reasons they could not file the application on time. It is contended that petitioners have serious dispute regarding the counter claim of respondent.

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Learned counsel for respondent has pointed out that there is no separate application to condone the delay of 136 days. The delay is not properly explained. Not even a medical certificate is produced to show alleged illness of first petitioner. Moreover in I.A.No.4625 of 2010 second petitioner is not made a party.

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It is settled law that to condone the delay under Sec.5 of the Limitation Act, a separate application is not required. What is required is only that the party requesting to condone delay has to show that he/she was prevented by sufficient cause from making the application on time. I am given a copy of I.A.No.4625 of 2010. There is a prayer to condone the delay as well. Therefore, absence of a separate application to condone the delay is not fatal.

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True that in I.A.No.4625 of 2010, name of the second petitioner is not shown in the cause title. But in the affidavit in support of that application, it is stated that the affidavit is sworn on behalf of the second petitioner also. Second petitioner is the

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C.R.P.No.38 of 2013

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brother of first petitioner. In the circumstance, failure to mention name of the second respondent in the cause title of I.A.No.4625 of 2010 need only be taken as a procedural error not affecting the application fatally.

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So far as delay is concerned, true that petitioners have not produced any evidence, documentary or oral. But, it is to be noted that delay involved is only 136 days. I must also notice that apart from dismissing the suit which was merely for injunction, learned Munsiff has granted a decree declaring title claimed by the respondent over the counter claim schedule property which is 54 cents. There is no reason to think that petitioners by their willful conduct failed to appear in Court on the day of trial.

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Since there is no contumacious neglect, I am inclined to think that petitioners must be given an opportunity to contest the case on merit. Minor latches are to be corrected by the common curative of costs. Having regard to the facts and circumstances I am inclined to think that the delay is explained. Hence the application could be allowed on cost of `.5,000/- payable to the respondent.

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Resultantly this revision petition is allowed as under:

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(i) Judgment of learned Sub Judge, Nedumangad in C.M.A.No.28 of 2011 and order of

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C.R.P.No.38 of 2013

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learned Principal Munsiff, Nedumangad on I.A.No.4625 of 2010 in O.S.No.262 of 2008 will stand set aside, I.A.No.4625 of 2010 allowed, dismissal of O.S.No.262 of 2008 of Munsiff's Court, Nedumangad is set aside and the decree on the counter claim in that case set aside on condition that petitioners deposit in the Munsiff's Court, Nedumangad within a month from this day `.5,000/- (Rupees Five Thousand Only) by way of cost for payment to the respondent.

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(ii) On compliance of the above condition as aforesaid, dismissal of O.S.No.262 of 2008 and decree on the counter claim in that suit will stand set aside. Learned Munsiff shall then proceed with the matter giving both sides opportunity to adduce evidence.

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(iii) In case of non compliance of the above condition, this civil revision will stand dismissed in confirmation of judgment in C.M.A.No.28 of 2011 and order on I.A.No.4625 of 2010.

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Sd/-

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THOMAS P.JOSEPH, JUDGE

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Sbna

Subhashini v. Balan

Case brief

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Subhashini v. Balan

Case brief

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