Dismissed

P.Geetha Devi v. Kottarath Suresh Kumar & Another

Kerala HC6 Oct 2016OP(C)/809/2011

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed the original petition and right first appeal. The court held that the lower court correctly set aside an ex parte decree because the additional defendant was not legally served with summons in the suit. The matter was remanded for disposal within six months while maintaining status quo.

What did the court decide?

O.P. and R.F.A. dismissed; Suit remanded for disposal within 6 months; Status quo maintained.

P.Geetha Devi Vs Kottarath Suresh Kumar & Another — Property and Title | 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 6TH DAY OF OCTOBER 2016/14TH ASWINA, 1938

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OP(C).No. 809 of 2011 (O)

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AGAINST THE ORDER/JUDGMENT IN OS 347/2007 of I ADDL.SUB COURT, ERNAKULAM DATED 15.01.2009

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PETITIONER:

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P.GEETHA DEVI,AGED 59 YEARS, D/O.JANAKI AMMA,TC 35/1509, EETTAYOORKONAM ROAD, KURUVIKKAD, VATTIYOORKAVU,THIRUVANANTHAPURAM, 695 013.

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BY ADVS.SRI.V.R.K.KAIMAL SRI.N.M.MADHU SMT.C.S.RAJANI

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RESPONDENTS:

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KOTTRATH SURESH KUMAR, PO BOX No.500 099, DUBAI,PERMANENTLY RESIDING AT "MADHAVAM", SUBHADRALAYAM, AMBADY, POONITHURA VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT, REP.BY POWER OF ATTORNEY AMBADY SIVASANKARA MENON, "MADHAVAM", SUBHADRALAYAM, AMBADY, POONITHURA VILLAGE, KANAYANNUR TALUK 682 317.

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VALSALA N.MENON, WIDOW OF NANDAN MENON, SREEVALSAM, CC NO.39/3234, V.R.M.ROAD, RAVIPURAM, ERNAKULAM 682 016.

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R1 BY ADV. SRI.VPK.PANICKER R2 BY ADV. SRI.G.SHRIKUMAR R2 BY ADV. SRI.SREEJITH S.NAIR

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 06-10-2016, ALONG WITH R.F.A.No.380/2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 809 of 2011 (O)

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APPENDIX

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PETITIONER'S EXHIBITS :-

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EXT.P1	:	COPY OF THE JUDGMENT IN OS.347/2007 ON THE FILE OF 1^stADDL. SUB COURT, ERNAKULAM.
EXT.P2	:	COPY OF THE AFFIDAVIT AND PETITION IN I.A.1378/2009 IN OS.347/2007.
EXT.P3	:	COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER TO EXT.P2.
EXT.P4	:	COPY OF THE MEMO DTD.19.12.2008 FILED BY THE COUNSEL FOR THE 2^nd RESPONDENT.
EXT.P5	:	COPY OF THE ORDER DTD.3.1.2011 IN I.A.1378/2009 IN OS.347/2007.

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RESPONDENTS' EXHIBITS :- NIL.

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True copy

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P.A to Judge

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V.CHITAMBARESH & ANIL K.NARENDRAN, JJ.

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O.P.(C)No.809 of 2011 & R.F.A.No.380 of 2009

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Dated this the 6^th day of October, 2016

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JUDGMENT

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Chitambaresh, J.

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Ext.P5 order impugned in O.P.(C)No.809/2011, inter alia, reads as follows:-

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“The suit was originally filed against six defendants as OS.69/06 before the Munsiff's Court Ernakulam. During the pendency of the suit the plaintiff filed IA.6892/06 for impleading the petitioner herein as additional defendant No.7. While that petition was pending the plaintiff filed another application ie., IA.880/07 for leave to amend the plaint. By keeping IA.6892/06 pending, the learned Munsiff, allowed IA.880/07 on 14.2.07. Accordingly, amendment was carried out, and addl.defendant No.7 was impleaded as per order in IA.888/07 on 17.2.07. Thereafter before issuing summons to additional defendant No.7, the case was transferred to this court. On transfer of the case IA.6892/06 was renumbered as IA.9536/08 and the suit was renumbered as OS.347/07. I have carefully examined the record of this case. It appears that a notice in IA.6892/06 (new No.9536/08) in OS.69/06 (new No.347/07) was served on the power of attorney holder of additional defendant No.7 on

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O.P.(C)No.809/2011 & R.F.A.No.380/2009

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1.1.09 showing the date of hearing as on 2.1.09. That on 2.1.09 the court set additional defendant No.7 as exparte on the assumption that summon was served on additional defendant No.7 in the suit. Actually, no summons was issued to additional defendant No.7 in the suit i.e., OS.347/07 (old No.OS.69/06). On the other hand, what is served on the power of attorney holder of additional defendant No.7 is the notice in IA.6892/06 (new No.9536/08) in OS.69/06 (new No.347/07). While perusing the entire records we could see that no summons was served on additional defendant No.7 in the suit.”

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Additional defendant No.7 is a transferee from defendant No.1 who claims under a Will. The plaintiff as well as defendant Nos.1 to 5 are the legal heirs of the testator of the Will.

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The court below has found after perusal of the records that additional defendant No.7 was not served with summons in the suit. Therefore the ex parte decree as against all the defendants has been set aside by Ext.P5 order which calls for no interference. After all, the parties have been afforded an opportunity to contest the suit on merits.

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R.F.A.No.380/2009 is infructuous since the decree

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impugned has already been set aside at the instance of additional

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O.P.(C)No.809/2011 & R.F.A.No.380/2009

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defendant No.7. The legal heirs of the testator gets a share only if due execution of the Will is not upheld. The additional defendant No.7 gets absolute title to the property if the Will executed in favour of defendant No.1 is upheld. All these are matters to be considered with additional defendant No.7 also in the party array. All the parties should be afforded sufficient opportunity in the matter of adjudication as regards the Will.

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The Appeal as well as the Original Petition are hereby dismissed. The court below is directed to dispose of O.S.No.347/2007 on its file within a period of six months. The

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parties shall maintain 'status quo' till the disposal of the suit.

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The Registry to send back the records forthwith.

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Sd/- V.CHITAMBARESH, JUDGE

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Sd/- ANIL K.NARENDRAN, JUDGE

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skj

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True copy

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P.A to Judge

P.Geetha Devi v. Kottarath Suresh Kumar & Another

Case brief

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P.Geetha Devi v. Kottarath Suresh Kumar & Another

Case brief

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