Allowed

Ajith Kumar v. Sodaran

Kerala HC10 Nov 2016FAO/136/2016

Case brief

AI extract

What is this about?

This judgment sets aside an order dismissing a partition suit for default and allows an application to restore the suit. The court condoned laches on the condition that appellants pay costs, directing the lower court to dispose of the suit within four months.

What did the court decide?

The impugned order set aside; I.A. 1427/2015 allowed subject to payment of Rs 10,000 costs within three weeks; suit restored if paid.

Ajith Kumar Vs Sodaran — 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 V.CHITAMBARESH &

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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THURSDAY, THE 10TH DAY OF NOVEMBER 2016/19TH KARTHIKA, 1938

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FAO.No. 136 of 2016 ()

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ORDER IN I.A. NO. 1427/2015 IN O.S. NO. 219/2011 OF SUB COURT, KOTTARAKKARA DATED 31.03.2016

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APPELLANTS/PETITIONERS/PLAINTIFFS :

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AJITH KUMAR, AGED 46 YEARS, S/O. SODARAN, SREEKRISHNA NILAYAM, AGASTHYACODU MURI,

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ANCHAL VILLAGE, PATHANAPURAM TALUK,

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KOLLAM DISTRICT-691 306.

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REJITH KUMAR, AGED 44 YEARS, S/O. SODARAN, SREEKRISHNA NILAYAM, AGASTHYACODU MURI, ANCHAL VILLAGE, PATHANAPURAM TALUK,

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KOLLAM DISTRICT-691 306.

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RANI, AGED 40 YEARS, W/O. A.KISHORE, KRISHNANJALI, KIZHAKKEKARA, KOTTARAKKARA, KOLLAM DISTRICT-691 506.

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BY ADVS.SRI.N.SUBRAMANIAM

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SRI.P.T.GIRIJAN SRI.M.S.NARAYANAN SMT. NEENU PAVITHRAN SMT.USHA NARAYANAN

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RESPONDENTS/RESPONDENTS/COUNTER PETITIONERS/DEFENDANTS :

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SODARAN, AGED ABOUT 78 YEARS, S/O. KANNAN, SREEKRISHNA NILAYAM, THAZHAMEL MURI, ANCHAL VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT - 691 306.

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BEENA, AGED ABOUT 48 YEARS, W/O. SODARAN, SREEKRISHNA NILAYAM, THAZHAMEL MURI, ANCHAL VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT - 691 306.

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R2 BY ADV. SRI.P.RAVEENDRAN PILLAI R2 BY ADV. SMT.INDIRA RAVEENDRAN

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THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 10-11-2016, ALONG WITH OPC. 879/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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V. CHITAMBARESH & ANIL K. NARENDRAN, JJ.

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---------------------------------------------------------------F.A.O. NO. 136 OF 2016 & OP(C) NO. 879 OF 2015

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Dated this the 10^th day of November, 2016

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JUDGMENT

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Chitambaresh, J.

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F.A.O. No. 136/2016 arises from an order refusing to restore a suit for partition to file. The appellants/plaintiffs filed an application to remove the case from the list on the day of trial of the suit. The reason stated was that OP(C) No. 879/2015 filed by their father/first respondent is pending. OP(C) No. 879/2015 arises out of an order refusing permission to alienate an item of property.

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The court below dismissed the application for adjournment and dismissed the suit for partition for default. I.A. No. 1427/2015 was later filed to restore the suit to file which is also dismissed. The appellants point out that there was no wilful laches in not appearing on the date the suit was called on for hearing.

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The pendency of OP(C) No. 879/2015 is a reason which could have prompted the appellants to move for

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FAO No. 136/2016 & OP(C) No. 879/2015

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adjournment. We are inclined to hold that there was no deliberate neglect or refusal on the part of the plaintiffs in appearing in the court below. There is however some laches on the plaintiffs which can be condoned on terms. The order impugned is set aside and I.A. No. 1427/2015 is allowed subject to the following terms.

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(i) The plaintiffs shall pay a sum of `10,000/- (Rupees Ten thousand only) as

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costs to the counsel for the first respondent/first defendant in this court within a period of three weeks from today.

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(ii) The suit in O.S. No. 219/2011

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shall stand restored in the event of costs

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being paid within the time stipulated.

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(iii) The impugned order will stand

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confirmed if the plaintiffs omit to pay the costs within the time stipulated.

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We direct the court of the Subordinate Judge of Kottarakkara to dispose of O.S. No. 219/2011 on its file (in the

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FAO No. 136/2016 & OP(C) No. 879/2015

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event of restoration) within a period of four months. Every endeavour shall be made to dispose of the suit before the court closes for summer recess. There is no necessity to grant permission to the petitioner in OP(C) No. 879/2015 to alienate the property now. This is because we have already fixed a time frame for the court below to dispose of the suit for partition.

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The Appeal and Original Petition are disposed of.

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V. CHITAMBARESH JUDGE

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ANIL K. NARENDRAN JUDGE

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ncd

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The time granted by this Court for payment of cost as per judgment dated 10.11.2016 in FAO No. 136/2016 & OP(C) No. 879/2015 is extended and payment effected in court in terms of the judgment, vide order dated 13.12.2016 in IA No. 1275/2016 in FAO No. 136/2016.

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Sd/Registrar (Judicial)

Ajith Kumar v. Sodaran

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Ajith Kumar v. Sodaran

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