Dismissed

Chandran v. Sujatha

Kerala HC9 Sept 2016CRP/379/2016

Case brief

AI extract

What is this about?

In this revision, the High Court upheld the Subordinate Court's order that set aside an ex parte decree in a suit for boundary fixation. The Court held that substituted service rendered the defendants entitled to notice and found no illegality in condoning delay in favor of senior citizens.

What did the court decide?

Revision petition dismissed in limine; Subordinate Court directed to expedite disposal of the pending suit before summer vacation.

Chandran Vs Sujatha — Partition | Kerala HC (2016)

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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 K.RAMAKRISHNAN

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FRIDAY, THE 9TH DAY OF SEPTEMBER 2016/18TH BHADRA, 1938

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CRP.No. 379 of 2016 ()

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----------------------(I.A.NO.1036/2015 IN OS.NO. 429/2009 OF PRL.MUNSIFF COURT,NEDUMANGAD)

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REVISION PETITIONERS/COUNTER PETITIONRS/PLAINTIFFS:

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1. CHANDRAN, AGED 72 YEARS, S/O.VELAYUDHAN, LEKSHMY BHAVAN, MUNDELA P.O., KIRINCHILACODE,

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ARUVIKKARA VILLAGE.

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2. BABY,

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AGED 71 YEARS, D/O.LEKSHMIKUTTY, KAVUMTHALA PUTHEN VEEDU, THOLOOR, MUNDELA P.O., KIRINCHILACODE, ARUVIKKARA VILLAGE.

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BY ADV. SRI.G.S.REGHUNATH

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RESPONDENTS/PETITIONERS/ORIGINAL DEFENDANTS:

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1. SUJATHA, AGED 81 YEARS, D/O.PANKAJAKSHY, KAVUMTHALAPUTHENPURACKAL VEEDU, THOLOOR, CHITTUVEETTU MURI, UZHAMALAKKAL VILLAGE, TRIVANDRUM - 695 541.

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2. LALITHA,

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AGED 76 YEARS, D/O.PANKAJAKSHY, KAVUMTHALAPUTHENPURACKAL VEEDU, THOLOOR, CHITTUVEETTU MURI, UZHAMALAKKAL VILLAGE, TRIVANDRUM - 695 541.

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3. SUDHAKARAN,

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AGED 73 YEARS, S/O.NARAYANA PANICKER, KAVUMTHALAPUTHENPURACKAL VEEDU, THOLOOR, CHITTUVEETTU MURI, UZHAMALAKKAL VILLAGE, TRIVANDRUM - 695 541.

2/-

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CRP.NO.379/2016

4. JAYACHANDRAN, AGED 69 YEARS, S/O.NARAYANA PANICKER, KAVUMTHALAPUTHENPURACKAL VEEDU, THOLOOR, CHITTUVEETTU MURI, UZHAMALAKKAL VILLAGE, TRIVANDRUM - 695 541.

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5. USHA,

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AGED 63 YEARS, D/O.PANKAJAKSHY, KAVUMTHALAPUTHENPURACKAL VEEDU, THOLOOR, CHITTUVEETTU MURI, UZHAMALAKKAL VILLAGE, TRIVANDRUM - 695 541.

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THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09-09-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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sts

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K. RAMAKRISHNAN, J.

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C.R.P.No.379 of 2016

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....................................................... Dated this the 9^th day of September, 2016.

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O R D E R

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This revision petition has been filed by the petitioners challenging the order passed by the court below in IA.No.1036/2015 in OS.No.429/2009 on the file of the Principal Munsiff Court, Nedumangad under section 115 of the Code of Civil Procedure (hereinafter referred to as 'the Code').

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It is alleged in the in the revision petition that the petitioners are the plaintiffs in OS.No.429/2009 on the file of the Munsiff Court, Nedumangad. The petitioners and the respondents are the relatives. The suit was filed for fixation of boundary and injunction. Though respondents 1 to 4 entered appearance and filed a written statement, thereafter they did not appear. The suit was decreed ex parte on 30.9.2013. Thereafter the petitioners filed EP.No.1/2015 on 30.1.2015 to execute the decree and notice was served in those cases by publication. It is thereafter that the 4^th defendant for himself and on behalf of other defendants filed the above petition for setting aside the ex parte decree after condoning a delay of 456 days in filing the application. It was alleged in the petition that they were not aware of the proceedings and they came to know about the disposal of the case only when they received notice in the execution proceedings and the first petitioner in the lower court is a cancer patient and second

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C.R.P.No.379 of 2016

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petitioner is a visually challenged person and no notice has been served on the 4^th defendant in the suit who filed the petition on behalf of others. This was stoutly challenged by the petitioners stating that the allegations are not correct. Defendants 1 to 3 entered appearance and filed vakalath on 11.9.2013. Thereafter they did not appear and the 4^th respondent is none other than the brother of respondents 1 and 2. So there is every possibility of he knowing about the proceedings. So the petition is without any bonafides and they prayed for dismissal of the application.

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The 4^th defendant was examined as PW1 and Exts. A1 and A2 were marked on his side. No evidence was adduced on the side of the respondents in the court below. After considering the evidence and the allegations, the court below had allowed the application for setting aside the ex parte decree after condoning the delay of 456 days on condition of payment of costs of Rs.3,500/- to the plaintiffs on or before 7.7.2016 otherwise the application will stand dismissed. This order is being challenged by the petitioner by filing this petition.

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Heard Sri. G.S. Raghunath, learned counsel appearing for the petitioners.

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Learned counsel appearing for the revision petitioners submitted that the court below had not considered the fact that there was vakalath filed for defendants 1 to 3 and the 4^th defendant is none other than the brother of respondents 1 to 3 and he is

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C.R.P.No.379 of 2016

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the power of attorney holder as well. Under such circumstances, it cannot be said that they were not aware of the proceedings. Further the commissioner had inspected the property for the purpose of measuring. So the allegation that they were not aware of the proceedings cannot be believed. These aspects were not properly appreciated by the court below before exercising the discretion of allowing the application.

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It is an admitted fact that the petitioners herein filed OS.No.429/2009 on the file of the Principal Munsiff Court, Nedumangad for fixation of boundary and other consequential injunction restraining the defendants from trespassing into the property. Though respondents 1 to 3 received notice and filed vakalath through counsel, they did not file any written statement. Notice to other respondents were effected by substituted service by publication. Since none of the respondents appeared, the court below proceeded with the suit and decreed the suit ex parte on 30.9.2013. It is also seen from the averments in the revision petition itself that the revision petitioners filed EP.No.1/2015 on 30.1.2015 and thereafter the defendants got information about the disposal of the suit and immediately they filed IA.No.1036/2015 to set aside the ex parte decree after condoning the delay of 456 days in filing the petition. It is mentioned in the affidavit that the first petitioner is a cancer patient and the second petitioner is a visually challenged person and no

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C.R.P.No.379 of 2016

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notice was served on respondents 4 and 5 and substituted service was ordered against them and the 4^th petitioner in the lower court is the power of attorney holder of other respondents as well. Since he was not aware of the proceedings, he could not appear and contest the case. That was the reason for the delay and they wanted the ex parte decree to be set aside. It is true that the allegations are stoutly denied and strongly opposed by the respondents. The fact that the first petitioner in the lower court is a cancer patient undergoing treatment which is evidenced by Ext.A1 produced before the court below is not in dispute. Further it is also seen from Ext.A2 that power of attorney has been executed by all the defendants in favour of the 4^th respondent to conduct the case. It is also seen from the petition that most of the petitioners in the lower court are senior citizens and the first petitioner is aged 75 years and the second petitioner is aged 70 years and the third petitioner is aged 67 years and the 4^th petitioner is aged 63 years. The revision petitioners are also senior citizens. The 4^th petitioner in the court below had gone to the witness box and given evidence as PW1 and the court below had believed his evidence considering the circumstances and exercised the discretion of allowing the application but at the same time it was allowed on payment of costs. Since the service on 4^th and 5^th respondents was effected by substituted service, the court below has correctly come to the conclusion that only from the date of

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C.R.P.No.379 of 2016 5

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knowledge, the 4^th petitioner in the court below will be getting a cause of action for filing the application to set aside ex parte decree. Considering the over all circumstances and also the dispute involved in the case as it relates to property where fixation of boundary is the relief claimed, this court feels that the court below was perfectly justified in exercising the discretion in favour of the respondents on payment of costs and this court do not find any illegality or impropriety committed by the court below in allowing the application on costs warranting interference at the hands of this court invoking the revisional jurisdiction.

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So the revision petition lacks merit and the same is dismissed in limine. However considering the fact that the case is of the year 2009 and most of the parties are senior citizens, the court below is directed to expedite the disposal of OS.No.429/2009 pending before that court as expeditiously as possible before the court closes for summer vacation.

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With the above directions and observations, this revision petition is dismissed in limine. Registry is directed to communicate a copy of this order to the court below at the earliest.

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Sd/-

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K. RAMAKRISHNAN, JUDGE.

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C.R.P.No.379 of 2016 6

Chandran v. Sujatha

Case brief

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What did the court decide?

Chandran v. Sujatha

Case brief

What is this about?

What did the court decide?

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