Allowed

Subash v. Sakunthala

Kerala HC16 Nov 2016OP(C)/7/2016

Case brief

AI extract

What is this about?

In a civil revision, the High Court set aside the lower court order dismissing a petitioners application for additional written statement demanding reservation of a house without valuation in a partition suit, holding the dismissal unsustainable and directing restoration of the application for hearing. The petition was allowed under Article 227. Q

What did the court decide?

The High Court set aside the lower court order dismissing the petitioners application for additional written statement. The High Court directed the lower court to receive the statement, provide the re

Subash Vs Sakunthala — 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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WEDNESDAY, THE 16TH DAY OF NOVEMBER 2016/25TH KARTHIKA, 1938

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OP(C).No. 7 of 2016 (O)

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OS.NO.68/2009 OF SUB COURT, THRISSUR

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PETITIONER(S)/DEFENDANTS 4 AND 8 :

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1. SUBASH, AGED 38 YEARS, S/O.RAJAPPAN, PADINJATHRAYIL, PULIKAPURAM DESOM, THEKKUMKARA VILLAGE, THALAPPALLY TALUK.

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2. KRISHNANKUTTY, S/O.ITTIERIA, PADINJATHRA HOUSE, ATHANI P.O., MULANKUNNATHUKAVU (VIA), THRISSUR.

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BY ADV. SMT.P.K.PRIYA

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RESPONDENT/PLAINTIFF :

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SAKUNTHALA, AGED 59 YEARS, D/O.PADINJATHRAYIL ITTIERA, PULIKAPURAM DESOM, THEKKUMKARA VILLAGE, THALAPPILLY TALUK, NOW RESIDING AT W/O.AZHAKANTHRA KUNJAPPAN, PONOTH ROAD, KALOOR, ERNAKULAM DISTRICT - 682 019.

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BY ADV. SRI.G.SREEKUMAR (CHELUR)

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 16-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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OP(C).No. 7 of 2016 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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P1 - THE TRUE COPY OF THE IA NO.8555/2013 IN OS NO.68/2009

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P2 - THE TRUE COPY OF THE ORDER IN IA NO.8555/2013 IN OS NO.68/2009.

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P3 - THE TRUE COPY OF THE I.A.NO.10405/2013 TO SET ASIDE THE EXPARTE DECREE PASSED ON 26.11.2013

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RESPONDENT(S)' EXHIBITS:

NIL

/TRUE COPY/

P.S.TO JUDGE

sts

K. RAMAKRISHNAN, J.

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O.P.(C).No.7 of 2016

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Dated this the 16^th day of November, 2016.

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JUDGMENT

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This is a petition filed by the petitioners challenging Ext.P2 order passed by the court below under Article 227 of the Constitution of India.

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It is alleged in the petition that the respondent herein filed OS.No.68/2009 for partition of the plaint schedule property. The petitioners filed a written statement earlier. Thereafter they filed IA.No.8555/2013 to receive additional written statement under Order 8 Rule 9 of the Code of Civil Procedure incorporating a claim for reservation of the house without valuation. That application was dismissed by Ext.P2 order and also the petitioners were declared ex parte and they filed IA.No.10405/2013 to set aside the ex parte decree and the same was allowed now. So the petitioners filed this original petition challenging Ext.P2 order. It is alleged in the petition that they could not challenge Ext.P2 order earlier because of the pendency of Ext.P3 application.

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Heard Smt. Priya P.K, learned counsel appearing for the petitioners and Sri. Sreekumar Chelur, learned counsel appearing for the respondent.

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Learned counsel appearing for the petitioners submitted that the petition to set aside the ex parte decree was allowed and now the suit has been restored to file and there is no impediment

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O.P.(C).No.7 of 2016 2

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to consider the present claim also. Learned counsel appearing for the respondent submitted that the court below was perfectly justified in dismissing the application.

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It is an admitted fact that the respondent herein filed OS.No.68/2009 for partition of the plaint schedule property and allotment of her share. The petitioners are defendants 4 and 8 in the suit. Earlier they filed a written statement denying the allegations in the plaint and also making certain claims. Thereafter they filed IA.No.8555/2013 to receive additional written statement incorporating a claim for reservation of the house in the property without valuation. That petition was dismissed by the court below by Ext.P2 order stating that a new claim has been raised and the plaintiff's evidence was over and the application was belated and it will emberass the trial. Along with the dismissal of the application, petitioners were also declared ex parte and an ex parte decree for partition was passed. Later petitioners filed Ext.P3 application as IA.No.10405/2013 to set aside the ex parte decree and both the counsel submitted that the application has been allowed and ex parte decree has been set aside and now the case is restored to file. Under such circumstances, fresh evidence will have to be adduced in the matter. In a suit for partition, claiming reservation of the house cannot be said to be a new claim and that can be claimed by the parties at any time. Whether they are entitled for

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O.P.(C).No.7 of 2016

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reservation or not, is a mater to be considered by the court below on the basis of evidence or it may be relegated to the final decree proceedings as well. So under such circumstances, this court feels that the reason given by the court below for dismissal of the application appears to be not sustainable and the same has to be set aside. So the petition is allowed and Ext.P2 order dismissing IA.No.8555/2013 in OS.No.68/2009 is set aside and the application is allowed and additional written statement filed by the petitioners is received. If the plaintiff's want to adduce further evidence on the basis of the additional written statement, the court below is directed to give an opportunity to adduce further evidence on that aspect as well and thereafter proceed with the disposal of the case in accordance with law after giving opportunity to the petitioners to cross examine the plaintiff and his witnesses if any, and adduce evidence to prove the case as well.

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With the above directions and observations, this petition is disposed of. Registry is directed to communicate a copy of this judgment to the court below at the earliest.

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Sd/-

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K. RAMAKRISHNAN, JUDGE.

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Subash v. Sakunthala

Case brief

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Subash v. Sakunthala

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