The High Court of Kerala dismissed an appeal challenging orders rejecting applications to condone delay in filing an application to set aside an ex parte decree in a partition suit. The court upheld the lower court's finding that the appellant's stated medical reasons were invalid as she was represented by a power of attorney holder.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE SUNIL THOMAS
FRIDAY, THE 24TH DAY OF JULY 2015/2ND SRAVANA, 1937
FAO.No. 189 of 2008 ( ) ------------------------
(AGAINST THE ORDER/JUDGMENT IN I.A.NO.186/2004 & 187/2004 IN OS 357/1995 of SUB COURT, MANJERI)
APPELLANT(S)/APPLICANT/3RD DEFENDANT:: -------------------------------------MANHAPRA LAKSHMIKUTTY AMMA, D/O.KALLIANIKUTTY AMMA, TIRUR TALUK, NADUVATTOM PAZHOOR.
BY ADVS.SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR
RESPONDENT(S)PLAINTIFF AND DEFENDANTS::
R,R1 BY ADV. SRI.V.RAJENDRAN R,ADDL.RESPTS BY ADV. SRI.V.RAJENDRAN R,ADDL.RESPTS BY ADV. SMT.K.S.SABITHA
THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 20-07-2015, THE COURT ON 24/7/2015 DELIVERED THE FOLLOWING:
THOTTATHIL B. RADHAKRISHNAN & SUNIL THOMAS, JJ.
F.A.O. No. 189 of 2008
Dated this the 24th day of July, 2015
JUDGMENT
Sunil Thomas, J.
The third defendant in O.S.No.357 of 1995, aggrieved by the dismissal of I.A. Nos.186 of 2004 & 187 of 2004, which were applications to condone the delay as well as the application to set aside the ex parte decree, has preferred this appeal.
F.A.O.No.189/2008
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seeking condonation of delay.
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that she was prevented from physically appearing before the court below. Even though the petitioner was set ex parte on 27/2/2003, the application was filed only on 27/1/2004. However, it was admitted that the notice in I.A. No.1972/2003 was served on her on 3/11/2003. This aspect of the delay is not explained properly. Even assuming that Ext.A1 was reliable, the court below still found that it was not a valid reason for the absence of the petitioner. It was for the reason that she was being represented by a power of attorney holder through out the proceedings. Hence, it was not essential that the petitioner herself should contact the lawyer. This reasoning of the court below appears to be valid and sustainable.
F.A.O.No.189/2008
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categorically stated that the property was in her exclusive possession. There was a further averment that the plaintiff was
never in possession of the plaint schedule property.
The appeal is hence without any merit and is dismissed. No
costs.
Sd/-
THOTTATHIL B.RADHAKRISHNAN Judge
Sd/-
SUNIL THOMAS Judge
dpk
/true copy/ PS to Judge.
F.A.O.No.189/2008 5
2 issues framed by the court
Whether the appellant validly proved medical grounds to condone delay in setting aside ex parte decree.
Whether the appellant was justified in claiming she could not contact her counsel due to illness.
Manhapra Lakshmikutty Amma
Kader
Thottathil B. Radhakrishnan
Sunil Thomas
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
