Partly allowed

Sethulakshmi Kunjamma v. Aliyar

Kerala HC5 Feb 2013OP(C)/408/2013

Case brief

AI extract

What is this about?

In this revision petition, the High Court set aside the Additional Sub Judge's orders dismissing applications to restore a set-aside application. The Court, finding the counsel's absence excusable, restored the application to file and directed the lower court to dispose of it on merit.

What did the court decide?

Exhibits P10 and P11 (orders on IA Nos.64 and 65 of 2012) set aside; Exhibit P6 (application) restored; Sub Judge directed to dispose of application on merit.

Sethulakshmi Kunjamma Vs Aliyar — 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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TUESDAY, THE 5TH DAY OF FEBRUARY 2013/16TH MAGHA 1934

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OP(C).No. 408 of 2013 (O)

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OS.491/2008 of ADDL.SUB COURT,NORTH PARAVUR

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PETITIONER(S):

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SETHULAKSHMI KUNJAMMA, AGED 73, W/O.MUKUNDAN KARTHA, NOW RESIDING AT 8630 TIDAL BAY LANE, TAMPA, HILLSBOROUGH COUNTY FLORIDA, UNITED STATES OF AMERICA REPRESENTED BY HER POWER OF ATTORNEY HOLDER RAJESH P.RAJ AGED 32, S/O.LATE M.R.P.RAJ, RESIDING AT ARYANCHERI MADAM WEST KADUNGALLOOR, ALANGADU VILLAGE, PARUR TALUK PINCODE 683 110.

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VYAS KARTHA, AGED 49, S/O.MUKUNDAN KARTHA

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NOW RESIDING AT 1089 CORDOVA BOULEVARD NE, ST. PETERS BURG. PINELLAS COUNTY, FLORIDA UNITED STATES OF AMERICA REPRESENTED BY HER POWER OF ATTORNEY HOLDER RAJESH P.RAJ S/O.LATE M.R.P.RAJ, RESIDING AT ARYANCHERI MADAM WEST KADUNGALLOOR, ALANGADU VILLAGE, PARUR TALUK PINCODE 683 110.

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BY ADVS.SRI.P.N.RAMAKRISHNAN NAIR

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SRI.P.VISWANATHAN

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RESPONDENT(S):

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ALIYAR, AGED ABOUT 75, S/O.CHEKKUTTY, PAREKKATTIL, EDATHALA KARA ALUVA EAST VILLAGE, ALUVA TALUK, EDATHALA P.O PINCODE 683 561

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K.G.CHANDRAMMA, AGED ABOUT 65, W/O.SREEDHARAN, SREENIKETHAN, EDATHALA DESAM ALUVA EAST VILLAGE, ALUVA TALUK, EDATHALA P.O. PINCODE -683 561.

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R1 BY ADV. SRI.PAUL K.VARGHESE

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R1 BY ADV. SRI.T.R.RAMANATHAN R2 BY ADV. SRI.C.V.MANUVILSAN R2 BY ADV. SRI.P.G.SURESH

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 05-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C) NO.408/2013

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APPENDIX

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PETITIONER(S) EXHIBITS:

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EXHIBIT P1 AND P1(a). TRUE PHOTOSTAT COPY OF THE POWER OF ATTORNEY.

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EXHIBIT P2. THE COPY OF THE PLAINT FILED IN OS NO.491 OF 2008, ON THE FILES OF THE SUB COURT, NORTH PARAVUR.

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EXHIBIT P3 AND P4. TRUE PHOTOSTAT COPY OF THE WRITTEN STATEMENTS.

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EXHIBIT P5,P5(a),P5(B) AND P5(C). THE TRUE PHOTOSTAT COPY OF THE COMMISSION REPORT AND SKETCHES.

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EXHIBIT P6. THE TRUE PHOTOSTAT COPY OF THE IA NO.2590 OF 2012.

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EXHIBIT P7. THE TYPED COPY OF THE ORDER IN IA NO.2590 OF 2012.

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EXHIBIT P8 AND P9.TRUE PHOTOSTAT COPY OF THE IA NO.64 OF 2012 AND IA NO.65 OF 2012.

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EXHIBIT P10 AND P11. TRUE COPY OF THE ORDRES IN IA NO.64 OF 2012 AND IA NO.65 OF 2012.

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RESPONDENTS' EXHIBITS:

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NIL

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//TRUE COPY//

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THOMAS P.JOSEPH, J.

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==================================== O.P(C) No.408 of 2013

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

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Dated this the 05^th day of February, 2013

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J U D G M E N T

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Exhibits P10 and P11, orders passed by the learned Additional Sub Judge, North Paravur on Exts.P8 and P9, applications are under challenge.

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Petitioners filed O.S. No.491 of 2008 for a declaration of title and other reliefs. As per order on I.A. No.3734 of 3010 a survey commission was appointed. Advocate Commissioner, with assistance of the Surveyor inspected the property and submitted Exts.P5 to P5(c), report and plans. Petitioners filed Ext.P6, application to set aside/remit those report and plans. On the day I.A. No.3734 of 2010 was posted for enquiry, though the Advocate Commissioner was present to give evidence, counsel for petitioner could not appear since he was otherwise occupied in connection with the marriage of his daughter. There was a request for time but that was rejected and Ext.P6, application was dismissed. The suit was posted for trial in the list on 01.02.2012. Petitioners filed Exts.P8 and P9, applications to restore Ext.P6, application and remove the case from the list. Those applications were also

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O.P(C) No.408 of 2013

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-: 2 :-

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dismissed (as per Exts.P10 and P11, orders, respectively).

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Learned counsel submitted that report and plans submitted by the Advocate Commissioner are not useful for a decision of the dispute involved and that property cannot be identified with reference to those report and plans.

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I have heard learned counsel for the respondent as

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well.

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It is seen that Ext.P6, application to set aside/remit the earlier report and plans was dismissed due to the absence of counsel. Absence is explained by the learned counsel which I find no reason to reject. In that view of the matter, learned Sub Judge has to consider the application for remission/setting aside on merit. In the circumstances I am inclined to interfere with the impugned order.

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The Original Petition is allowed as under:

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(i) Exhibits P10 and P11, orders on I.A. Nos.64 and 65 of 2012 in O.S. No.491 of 2008 of the Sub Court, North Paravur are set aside.

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(ii) Exhibit P6, application is restored to file.

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O.P(C) No.408 of 2013

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-: 3 :-

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(iii) Learned Sub Judge is directed to dispose of Ext.P6, application on merit after hearing both sides.

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THOMAS P. JOSEPH, JUDGE.

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vsv

Sethulakshmi Kunjamma v. Aliyar

Case brief

What is this about?

What did the court decide?

Sethulakshmi Kunjamma v. Aliyar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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