Dismissed

Poovankulathil Saifudheen v. Oliyantakath Assankunhi

Kerala HC8 Nov 2017FAO/116/2017

Case brief

AI extract

What is this about?

An appeal against the dismissal of an application to set aside an ex-parte decree for specific performance. The High Court found the appellant family was aware of the suit through close relations and prior litigation references, rejecting claims of ignorance as an attempt to delay execution.

What did the court decide?

The appeal fails and is dismissed. The order dismissing the I.A. to set aside the ex-parte decree is upheld.

Poovankulathil Saifudheen Vs Oliyantakath Assankunhi — Specific Performance | Kerala HC (2017)

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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 P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

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WEDNESDAY, THE 8TH DAY OF NOVEMBER 2017/17TH KARTHIKA, 1939

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FAO.No. 116 of 2017 ()

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(AGAINST THE ORDER DATED 21.11.2016 IN I.A.NO.1654/2014 IN O.S.NO.138/2011 ON THE FILES OF THE SUB COURT, PAYANNUR)

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APPELLANT/2ND PETITIONER/DEFENDANT NO.2:-:

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POOVANKULATHIL SAIFUDHEEN,

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AGED 42 YEARS, S/O.K.P.MUHAMMEDKUNHI, CHENGALAYI AMSOM, VALAKKAI DESOM, KANNUR DISTRICT - 670 631.

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BY ADVS.SRI.MATHEW KURIAKOSE SRI.G.GIREESH

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RESPONDENT(S)/1ST PETITIONER & RESPONDENTS/PLAINTIFF & DEFENDANTS 1 & 3 TO 6:-:

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1. OLIYANTAKATH ASSANKUNHI, AGED 45 YEARS, S/O.MUHAMMED, CHENGALAYI AMSOM, VALAKKAI DESOM, KANNUR DISTRICT - 670 631.

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2. KIZHAKKUMBAD PUTHIYAPPURAYIL MUHAMMEDKUNHI HAJI, AGED 62 YEARS, S/O.ABDULLA, RESIDING AT KURUMATHOOR AMSOM, DESOM, CHORUKKALA, P.O.KURUMATHOOR, KANNUR DISTRICT - 670 142.

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3. OLIYANTAKATH HAMZA, S/O.MUHAMMED, AGED 58 YEARS, NEDUMUNDA, KURUMATHOOR, KANNUR DISTRICT - 670 142.

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4. KURIKKALAKATH MOTTAN RIYAZ, AGED 34 YEARS, S/O.KUNHI MUHAMMED, KUTTIKOL, MORAZHA AMSOM, KANOOL DESOM, KANNUR DISTRICT - 670 331.

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5. KAKKOTTAKATH PARAMBILEPURAYIL NAFEESATHUL MISRIYA, AGED 33 YEARS, W/O.OLIYANTAKATH ASSANKUNHI, CHENGALAYI AMSOM, VALAKKAI DESOM, P.O.KOYYAM - 670 142.

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FAO.No. 116 of 2017 () -----------------------

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-2-

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6. KUTTOTH VALAPPIL MUHAMMEDKUNHI, AGED 63 YEARS, S/O.ABDULLA, CHENGAYI AMSOM, VALAKKAI DESOM, KANNUR DISTRICT - 670 631.

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R2 BY ADV. SRI.R.SURENDRAN

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THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 08-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RKM

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P.N. RAVINDRAN & DEVAN RAMACHANDRAN, JJ

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F.A.O No. 116 of 2017

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- - - - Dated this the 8^th day of November, 2017

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JUDGMENT

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P.N. RAVINDRAN, J.

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This appeal arises from the order passed by the Court of the Subordinate Judge of Payyannur on 21.11.2016 dismissing I.A.No.1654 of 2014 in O.S.No.138 of 2011 an application filed by the defendants in that suit with a prayer that the ex-parte decree passed against them on 29.11.2014 may be set aside. The appellant is the second defendant in the suit.

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The first respondent /plaintiff had in O.S.No.138 of 2011 prayed for a decree granting specific performance of an agreement for sale dated 28.12.2007 entered into between him on the one hand and defendants 1 and 2 on the other represented by their powers of attorney who were joined as defendants 5 and 6 in the suit. Summons in the suit was served on defendants 3 to 6 personally. Defendants 3 and 4 are alienees from defendants 1 and 2. Defendants 1 and 2 sold the plaint schedule property to them directly without the involvement of their powers of attorney, who as stated earlier are defendants 5 and 6. Service of notice on defendants 1 and 2 was effected by paper publication. It is relevant in this context to note that the third defendant is the brother of the first defendant, the fourth defendant is his brother in law, the fifth

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F.A. No. 116 of 2017 -2-

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defendant, his power of attorney is his wife. The sixth defendant is the father of the second defendant, namely the appellant herein. The sixth defendant who is the wife of the appellant had entered appearance in the suit and filed a joint written statement along with defendants 3 and 4, who as stated earlier are transferees from defendants 1 and 2. Defendants 1 and 2 were set ex-parte and the suit was decreed, after overruling the contentions raised by defendants 3, 4 and 6. The decretal portion of the judgment delivered by the court below on 29.11.2014 decreeing the suit reads as follows:

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“In the result, suit is decreed granting relief of specific performance, directing the plaintiff to deposit the balance sale consideration within two months from today and on deposit of balance sale consideration, all the defendants are directed to execute the sale deed in respect of the plaint schedule property in favour of the plaintiff within two months thereof, failing which the plaintiff is allowed to get execute the sale deed through court process. Plaintiff is also allowed to realise cost of the suit from the defendants.”

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By the said judgment, the plaintiff was directed to deposit the balance sale consideration within two months from the date of judgment and the defendants were directed to execute a sale deed in favour of the plaintiff within two months thereafter, failing which the plaintiff was allowed to get the sale deed executed through court. After the decree was passed, defendants 1 and 2 filed I.A.No.1654 of

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F.A. No. 116 of 2017 -3-

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2014 to have the ex parte decree passed against them set aside. They contended that they were unaware of the suit and also of the fact that they have been set ex-parte and that they came to know about the suit and the fact that they were set ex parte only after the suit was decreed, from defendants 3 and 4, their transferees.

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The plaintiff opposed the application contending inter alia that defendants 1 and 2 were aware of the suit. They also contended that defendants 1 and 2 were parties to O.S.No.123 of 2011 on the file of the Court of the Munisiff Court, Thaliparamba and in the written statement filed in that suit, they had referred to the pendency of the instant suit namely, O.S.No.138 of 2011 on the file of the Court of the Subordinate Judge of Payyannur. They contended that the attempt of defendants 1 and 2 is only to delay the execution of decree.

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Before the court below, though no oral evidence was adduced, notarised copies of the passports held by defendants 1 and 2 were produced and marked as Exts.A1 and A2 by consent. Likewise, a certified copy of the counter affidavit filed in I.A.No.1350 of 2011 in O.S.No.123 of 2011 on the file of the Court of the Munisiff Court, Thaliparamba was produced and marked as Ext.B1. After considering the rival contentions, the court below held that the case set out by defendants 1 and 2 that they were unaware of the pendency of the suit cannot be accepted. The application to set aside the decree

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F.A. No. 116 of 2017 -4-

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passed against defendants 1 and 2 after setting them ex parte, was dismissed. The second defendant has, as stated earlier, filed this appeal.

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We heard Sri. Mathew Kuriakose, learned counsel appearing for the appellant Sri. R. Surendran, learned counsel appearing for the second respondent.

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We have also gone through the pleadings and materials on record. It is not in dispute that the appellant is a party to O.S.No.123 of 2011 on the file of the Court of the Munsiff of Taliparamba. The appellant along with the first defendant had in that suit filed Ext.B1 counter in I.A.No.1350 of 2011 wherein there is a specific reference to the instant suit, namely, O.S.No.138 of 2011. Ext.B1 counter statement is dated 1.9.2011. Defendants 1 and 2, however, contended before the court below that Ext.B1 counter statement is one signed by their counsel. Even assuming that it is a counter statement signed and filed by their counsel, their counsel who is practising in Taliparamba would not have come to know about the suit in the Payyannur Sub Court unless he was instructed in that regard. That apart, as stated earlier, the third defendant is none other than the brother of the first defendant, the fourth defendant is his brother-inlaw and the fifth defendant is his wife. Likewise, the sixth defendant is the father of the second defendant. As stated earlier, defendants 3, 4

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F.A. No. 116 of 2017 -5-

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and 6 had filed a joint written statement. The appellant has no case that he was not in contact with defendants 3 to 6. Having regard to the fact that defendants 3 to 5 are near relations of the first defendant and the further fact that the sixth defendant who is none other than the power of attorney of the second defendant, namely, the appellant herein had entered appearance and filed a written statement along with defendants 3 and 4, we cannot for a moment accept the case set out by the appellant that he was unaware of the suit. His attempt is in our opinion intended to delay the execution of the decree passed by this court after considering the contentions raised by defendants 3, 4 and 6 on the merits.

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We accordingly hold that there is no merit in the challenge in the impugned order. The appeal fails and is accordingly dismissed.

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Sd/-

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P.N. RAVINDRAN, JUDGE

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sd/-

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DEVAN RAMACHANDRAN, JUDGE

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Poovankulathil Saifudheen v. Oliyantakath Assankunhi

Case brief

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Poovankulathil Saifudheen v. Oliyantakath Assankunhi

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