Remanded

Treesa Fernandez v. Sudharman

Kerala HC14 Oct 2016RSA/322/2015

Case brief

AI extract

What is this about?

The High Court set aside the ex parte decree and orders dismissing impleadment and delay condonation. A substantial justice approach prioritized giving the outsider purchaser an opportunity to contest the eviction suit despite the technical bar of impleadment. The matter was remanded for a fresh trial and disposal along with a subsequent suit within six months.

What did the court decide?

Order dismissing I.A. No. 1920/2013, the ex parte judgment, decree in O.S. No.267/2005, and orders in I.A. No. 1585/2013 and appeal A.S. No.188/2013 set aside. Matter remanded for fresh trial with imp

Treesa Fernandez Vs Sudharman — 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 K.HARILAL

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FRIDAY, THE 14TH DAY OF OCTOBER 2016/22ND ASWINA, 1938

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RSA.NO. 322 OF 2015 ()

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AGAINST THE ORDER IN AS 188/2013 OF DISTRICT COURT,KOLLAM DATED 05-08-2014

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AGAINST THE JUDGMENT IN OS 267/2005 OF PRINCIPAL MUNSIFF COURT, KOLLAM DATED 19-07-2008

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APPELLANT/APPELLANT/INTERESTED PARTY:

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--------------------------------------

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TREESA FERNANDEZ, AGED 66 YEARS, D/O.ANTONY, MALABAR HOUSE, MUNDAKKAL , UDAYAMARTHANDAPURAM , KOLLAM.

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BY ADV. SMT.G.VIDYA

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RESPONDENTS/RESPONDENTS/ PLAINTIFF & DEFENDANTS 1 AND 2 :

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1. SUDHARMAN, AGED 55 YEARS, S/O.REGHU, REGHUMANDIRAM, PEZHUMTHRUTH, PERUMON, KOLLAM DISTRICT PIN 691601.

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2. DEEPTHI AJAYARAM, AGED 42 YEARS, D/O.PONNAN, ANJETHUKRISHNA PRIYA, MUNDAKKAL EAST, KOLLAM DISTRICT, PIN-691010.

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*** 3. AJAYARAM, (DIED) AGED 47 YEARS, S/O.ATMARAM,ANJETHUKRISHNA PRIYA, MUNDAKKAL EAST, KOLLAM DISTRICT, PIN 691010**

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*** (LRS IMPLEADED AS ADDITIONAL R4 TO R6)**

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ADDITIONAL RESPONDENTS

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4. ASWATHY AJAYARAM, AGED 26 YEARS, D/O. LATE AJAYARAM, ANJETHUKRISHNA PRIYA, MUNDAKKAL EAST, KOLLAM DISTRICT. 5. AARATHY AJAYARAM, AGED 22 YEARS, D/O. LATE AJAYARAM, ANJETHUKRISHNA PRIYA, MUNDAKKAL EAST, KOLLAM DISTRICT.

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RSA.NO. 322 OF 2015 ()

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3. ARUNDHAHY AJAYARAM, AGED 19 YEARS, D/O. LATE AJAYARAM, ANJETHUKRISHNA PRIYA, MUNDAKKAL EAST, KOLLAM DISTRICT.

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LEGAL HEIRS OF DECEASED 3^RD RESPONDENT ARE IMPLEADED AS ADDITIONAL

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RESPONDENTS 4 TO 6 AS PER ORDER DATED 28.9.2016 IN I.A. NO.697/2016.

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R1 BY ADV. SRI.PRATHEESH.P R1 BY ADV. SMT.RENY ANTO R2 BY ADV. SRI.AJAYA KUMAR. G

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DST

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K. HARILAL, J.

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= = = = = = = = = = = = = = = = = = = = = R.S.A. No.322 of 2015

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- - - - - - -- - - - - - - - - - - - - - - - - - - - Dated this the 14th day of October, 2016

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J U D G M E N T

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The appellant herein is the appellant in A.S.No.188/2013 on the files of the District Court, Kollam. This appeal is filed challenging the ex

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parte decree passed by the Principal Munsiff's Court, Kollam in O.S.No.267/2005 granting a declaration of easement right in favour of the plaintiff. The appellant herein is not a party in

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the Original Suit; but she filed the aforesaid appeal before the lower appellate court as an interested party.

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The respondents herein are the plaintiffs and the defendants in the suit. O.S.No.267/2005 was decreed on 19.7.2008. During the pendency of the suit, the appellant purchased the property with bona fides from the defendants without knowing the

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R.S.A. No.322 of 2015

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-: 2 :-

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pendency of the suit. According to the appellant,

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she came to know about the suit only when the plaintiff filed another suit O.S.No.215/2013 against the appellant, on the strength of the ex parte decree passed against the predecessor of the appellant. Even though the appellant filed I.A. No.1919/2013 under Order IX Rule 13 of the C.P.C. to

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set aside the ex parte decree passed in O.S.No.267/2005, along with I.A. No.1920/2013 under Section 5 of the Limitation Act to condone the delay

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of around 5 years, the trial court rejected the application to condone the delay and consequently, I.A. No.1919/2013 was dismissed on 19.10.2013.

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Thereafter, the appellant filed

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A.S.No.188/2013 before the District Court along with I.A. No.1585/2013 seeking condonation of delay of

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more than 5 years. The 1^st respondent/plaintiff appeared in the delay petition and filed objection

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R.S.A. No.322 of 2015

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-: 3 :-

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contending that the appellant purchased the property

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from the defendants, during the pendency of the suit, after knowing fully well that there is a suit pending against the defendants and an ex parte decree was passed against the defendants.

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The appellant was examined as P.W.1 before the District Court. After considering the evidence on record, the appellate court dismissed I.A. No.1585/2013, seeking condonation of delay and dismissed the appeal consequently. The order dismissing I.A. No.1585/2013 and the judgment passed in A.S.No.188/2013 are challenged in this appeal.

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Heard the learned counsel for the

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appellant.

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Admittedly, the appellant was not a party

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in the party array of O.S.No.267/2005. According to

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the appellant, she was unaware of the ex parte decree passed against the original defendants. The

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R.S.A. No.322 of 2015

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-: 4 :-

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appellant happened to be a purchaser of the property from the original defendants in the aforesaid suit, who are respondent Nos.2 and 3 herein. E ven though,

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the appellant made an attempt to get impleaded in the Original Suit, the application seeking impleadment was dismissed by the trial court. Even though, the 1^st respondent/plaintiff contended that the appellant was aware of the ex parte decree, which was passed against the original defendants, nothing has been brought out in evidence to substantiate the said contention. In the absence of any evidence, contrary to the case of the appellant that she purchased the property without knowing about the pendency of the suit, it can reasonably be presumed that the pendency of the suit was not revealed to the appellant, when she purchased the

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said property and she came to know about the ex parte decree, only when she received notice in the

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R.S.A. No.322 of 2015

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-: 5 :-

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subsequent suit, O.S. No.215 of 2013. Had she been

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aware of the pendency of the suit, certainly, she could not have remained in silence, particularly when, she purchased the property spending a substantial amount.

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It is pertinent to note that the

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respondents have no case that the transfer of property in favour of the appellant was made collusively. However, this Court finds that there is no reason or material, on record, to discard the case of the appellant that she came to know about the ex parte decree only when the appellant received notice in O.S. No.215 of 2013.

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This Court is of the view that adjudication of lis, on merits, is always desirable than disposal on technicality and when the substantial justice and technical considerations are pitted against each other, substantial justice deserves to be preferred

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R.S.A. No.322 of 2015

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-: 6 :-

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rather than technical considerations. If the

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appellant is denied of an opportunity to contest the suit, certainly, she will be put to irreparable injury and great loss, particularly when, a subsequent suit, O.S. No.215 of 2013, between the appellant and the respondents is pending consideration, on the basis of the ex parte decree passed earlier, against the appellant.

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In the above analysis, this Court finds

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that the appellant must be given an opportunity to contest Original Suit No.267 of 2005 on merits, particularly when, subsequent suit O.S. No.215 of 2013 filed against the appellant on the basis of the ex parte decree is also pending before the Munsiff's

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court. Consequently, the order passed in I.A. No.1920 of 2013 in O.S. No.267/2005, the ex parte

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judgment and the decree passed in O.S. No.267 of 2005, the order passed in I.A. No.1585 of 2013 in

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R.S.A. No.322 of 2015

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A.S. No.188 of 2013 and the judgment and the decree passed in A.S. No.188 of 2013 will stand set aside and the matter will stand remanded to the trial

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court for fresh trial, with the following conditions:

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The trial court shall restore O.S. No.267 of

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2005 on the files and the appellant is given an opportunity, to get impleaded in the suit, by filing an application and if such an application is filed, the trial court is directed to allow the same and make proper amendment in the plaint.

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2.The appellant shall file a written statement, within a period of one month from

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today. In the event of failure, all the Interlocutory orders, judgments and decrees

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passed by the trial court and the Lower Appellate Court respectively and challenged

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R.S.A. No.322 of 2015

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-: 8 :-

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before this Court in this Regular Second

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Appeal will stand in force.

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3. The trial court shall dispose of O.S.

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No.267 of 2005 along with O.S. No.215 of 2013, as early as possible, at any rate, within a period of six months from today.

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This Regular Second Appeal is disposed of

accordingly.

Sd/-

K. HARILAL,

JUDGE

OKB/DST

//True copy//

P.A. To Judge

Treesa Fernandez v. Sudharman

Case brief

What is this about?

What did the court decide?

Treesa Fernandez v. Sudharman

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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