Dismissed

Leelakutty v. Thankachan

Kerala HC9 Nov 2018FAO/19/2018

Case brief

AI extract

What is this about?

The Kerala High Court dismissed an appeal against the dismissal of two interlocutory applications. The appellants failed to prove sufficient cause for a 738-day delay in challenging an ex parte decree, as medical evidence was produced for periods prior to the decree, and relied on parole evidence inconsistent with their affidavit.

What did the court decide?

The applications to condone the delay and set aside the ex parte decree were dismissed; the appeal is dismissed.

Leelakutty Vs Thankachan — Civil Procedure and Limitation | Kerala HC (2018)

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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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THE HONOURABLE MRS. JUSTICE ANNIE JOHN

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FRIDAY ,THE 09TH DAY OF NOVEMBER 2018 / 17TH KARTHIKA, 1940

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FAO.No. 19 of 2018

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AGAINST THE ORDER IN I.A. NOS.801/2016 & 802/2016 IN OS 66/2012 of SUB COURT,THODUPUZHA

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APPELLANT/DEFENDANT:

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LEELAKUTTY, D/O NARAYANAN,ENATTUKUNNEL HOUSE,OLAMATTOM KARA,THODUPUZHA VILLAGE,THODUPUZHA TALUK.

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BY ADV. SRI.M.V.RAJENDRAN NAIR

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RESPONDENT/PLAINTIFF:

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THANKACHAN,

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S/O.JOSEPH,PUVATHUNGAL HOUSE,KAPPU KARA,MANJALLOOR VILLAGE,MUVATTUPUZHA TALUK,VAZHAKKULAM.P.O, PIN-686670.

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BY ADVS.SRI.P.B.KRISHNAN

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SRI.P.M.NEELAKANDAN

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SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE

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THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 09.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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FAO.No. 19 of 2018

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JUDGMENT

K.HARILAL,J.

The appellant is the defendant in O.S. No.66 of 2012 of the Sub Court, Thodupuzha. The above suit was filed by the respondent herein, seeking a decree for return of advance money based on an agreement. In the said suit, the appellant was declared ex parte on 15.11.2014 and thereafter, an ex parte order was passed on 26.11.2014. Aggrieved by the ex parte decree, the appellant filed I.A. No.802 of 2016, to set aside ex parte decree and I.A. No.801 of 2016, to condone the delay of 738 days in filing I.A. No.802 of 2016.

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2. The respondent filed objection to the

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FAO.No. 19 of 2018

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petition to condone the delay, contending that the appellant was fully aware of passing of the ex parte decree and she wilfully stayed away from appearing before the court on 15.11.2014, when the original suit was called on for trial. In the affidavit filed to condone the delay, there is no explanation as to the cause of the delay and the same is fatal. The averments contained in paragraph Nos.2 and 3 of the affidavit in support of the petition are not fully correct. There is a delay of more than two years in filing the petition, to set aside ex parte decree. But, the appellant was defending S.T. No.877 of 2016 pending before the Chief Judicial Magistrate Court-I, Thodupuzha during the relevant time and the appellant had been appearing before Judicial First Class

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FAO.No. 19 of 2018

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Magistrate, Thodupuzha on all posting dates of the case. Therefore, the contention of the appellant that she could not appear before the court due to diabetes is absolutely false. Thus, the respondent prayed for dismissal of both the petitions.

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3. After considering the rival pleas, the court below dismissed both the applications by

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a common order, on a finding that the appellant miserably failed to establish sufficient cause for condoning the delay and the delay condonation petition was dismissed accordingly. Consequently, I.A. No.802 of 2016

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to set aside the ex parte decree was also dismissed. The legality and correctness of the findings, whereby the court below dismissed both the applications by a common order, are challenged in this F.A.O.

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FAO.No. 19 of 2018

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4. Heard the learned counsel for the

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appellant and the learned counsel for the respondent.

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5. It is not disputed that there is a delay of 738 days in filing the petition to set aside ex parte decree. According to the

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appellant, she was suffering from diabetes for the last so many years and she was undergoing treatment for the same. Apart from the aforesaid vague averment, there is no specific reason for not challenging the ex parte decree

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for a long period of 738 days after 26.11.2014. In order to prove the alleged

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fact that she was suffering from diabetes and was undergoing treatment, the appellant produced Exts.A1 and A2.

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6. Going by Exts.A1 and A2, as rightly held by the court below, it could be seen that

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FAO.No. 19 of 2018

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Exts.A1 and A2 are not pertaining to a period after passing of the ex parte decree. The suit was decreed ex parte on 26.11.2014. Ext.A1 is the treatment card issued by the Government in the scheme Non-communicable Deceases Central Programme[NCDCP], Arogyakeralam, Idukki. This treatment card relates to a period starting from 04.02.2016 only. Ext.A2 is the medical certificate issued by one Doctor by name K.V. George, Idukki District Hospital, Thodupuzha. Ext.A2 shows that the appellant was under the careful personal examination of the said Doctor for a period of 20 days with effect from 07.02.2013. It is needless to say, Ext.A2 relates to a period before the passing of ex parte decree. No document was produced to establish the cause of the delay in filing the petition to

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FAO.No. 19 of 2018

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set aside ex parte decree, after 26.11.2014.

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7. Going by the oral evidence of the

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appellant as PW.1, it could be seen that no specific reason was spoken to either in the chief-examination or in the cross-examination, as to the delay in filing the application, to

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set aside ex parte decree. She has no case that she was not aware of the ex parte decree or her counsel has not informed her the passing of ex parte decree. What was spoken to in cross-examination shows that she was actively conducting several other cases during

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the period of 738 days. No sufficient cause was shown to condone the delay. In the above

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view, the court below is justified in dismissing the application to condone the delay.

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8. Coming to the order passed in I.A.

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FAO.No. 19 of 2018

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No.802 of 2016, we find that in view of the dismissal of the application to condone the delay, the court below is justified in dismissing I.A. No.802 of 2016, which was

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filed to set aside ex parte decree. We do not find any reason to interfere with the findings of the court below.

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Hence, this appeal is devoid of merits and dismissed accordingly. All pending

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Interlocutory Applications will stand closed.

Sd/-

K.HARILAL, JUDGE

Sd/-

ANNIE JOHN,JUDGE

DST

//True copy//

P.A. To Judge

Leelakutty v. Thankachan

Case brief

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Leelakutty v. Thankachan

Case brief

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