This is an appeal against the dismissal of a father's application to set aside a default order in a partition suit and to condone a four-and-a-half-year delay in filing the same. The High Court found the explanation of alleged settlement uncorroborated and dismissed the appeal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
WEDNESDAY, THE 14TH DAY OF FEBRUARY 2018 / 25TH MAGHA, 1939
FAO.No. 22 of 2018
R.P.I.A.355 & 356/17 IN O.S.NO.879/2009 DT.12.4.2017 OF TH 3RD ADDL.SUB COURT, KOZHIKODE.
APPELLANT(S)/PETITIONER IN IA/PLAINTIFF IN THE SUIT
SANTHAKUMARI
AGED 61 YEARS, W/O. UNNISANKARA PANIKKER, RESIDING AT ADHIKARITHODIKAYIL HOUSE,VELLALASERI, POST, NIT, CHULLOOR AMSOM, SANKETHAM DESOM, KOZHIKODE TALUK.
BY ADVS.SRI.V.V.SURENDRAN, SRI.P.A.HARISH
RESPONDENT(S)/RESPONDENTS:
AGED 85 YEARS, W/O.K.K RAGHAVAN NAIR, RESIDING AT CHANGOTT HOUSE, POST CHULOOR, POOLAKKODE AMSOM DESOM, NIT, KOZHIKODE TALUK - 673 601.
AGED 66 YEARS, S/O. DEVAKI AMMA,RESIDING AT CHANGOTT
HOUSE, POST CHULOOR, POOLAKKODE AMSOM DESOM, NIT, KOZHIKODE TALUK - 673 601.
AGED 48 YEARS, W/O.PADMARAJAN, RESIDING AT HARIPRIYA, PEOPLE ROAD, POST KARAPARAMBA, KALLATHIKUNNU AMSOM DESOM, KOZHIKODE TALUK - 673 010.
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 14-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
P.N. Ravindran & R.Narayana Pisharadi, JJ.
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F.A.O.No.22 of 2018
- - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 14th February, 2018
JUDGMENT
P.N.Ravindran, J.
The appellant is the plaintiff in O.S.No.879 of 2009 on the file of the Court of the Third Additional Subordinate Judge of Kozhikode. The relief sought in the suit is to declare that a partition deed registered as document No.3423 of 1989 of Sub Registrar's Office, Chevayoor is not binding on the plaintiff and for partition of the plaint schedule property into 8 shares and allotment of one such share to the plaintiff. Upon receipt of summons, the defendants who are the mother and siblings of the plaintiff entered appearance and filed a written statement resisting the suit. Long after issues were framed, the suit stood listed for trial on 12.3.2012. Since the plaintiff did not appear, the trial court dismissed the suit for default. Several years later, to be exact, 4 years, 10 months and 17 days thereafter, the appellant plaintiff filed I.A.No.355 of 2017 accompanied by I.A.No.356 of 2017 to have the order dismissing the suit for default set aside after condoning the delay of 4 years, 9 months and 17 days in filing the former application.
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the other defendants had offered to settle the undivided share which had devolved on the first defendant in the properties that belonged to late P.N.Ramanunni Nair, brother of the first defendant and therefore as the said suggestion was acceptable to her, she did not appear in the trial court on 12.3.2012, the date on which the suit stood listed for trial. The appellant has in the said affidavits further stated that though she was advised that an application will have to be filed within time to have the suit restored to file, in view of the fact that the settlement offered was acceptable to her and she was under the bonafide belief that the matter has been settled, she did not take timely steps to have the suit restored to file. She had further averred that her mother had promised to settle all disputes by 15.1.2017 and that on 15.1.2017 when she contacted her mother, she told her that as her siblings have expressed dissent, she is not in a position to honour the commitment earlier made. It is on these averments that the appellant prayed that after condoning the delay of 4 years, 9 months and 17 days in filing the application to set aside the order dismissing the suit for default, the order dismissing the suit for default may be set aside. The defendants jointly filed objections to both the applications. They contended that the case set out by the appellant is neither true nor tenable. They contended that the first defendant had not offered to
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settle on the plaintiff, her undivided share in the property of her brother late P.N.Ramanunni Nair.
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court held that the explanation offered cannot be accepted. This was also the reason given for not filing an application to set aside the order dismissing the suit for default in time. The case set out by the appellant is that though she was advised to file an application to set aside the order dismissing the suit for default, as she was under the bonafide belief that the dispute between the parties has been settled, she did not take timely steps. A reading of the affidavit would indicate that for about 4 years and 10 months she was under the belief that the dispute between the parties has been settled. Though she has stated that pursuant to the alleged settlement she had met her mother and requested her to take steps to execute a deed in terms of the settlement alleged to have been entered into, she has no case that the settlement which was suggested by her mother was discussed with her siblings and they had also agreed to the said settlement. There is no averment in that regard in the affidavit filed in support of both the applications. Except saying that on 15.1.2017 when she contacted her mother, her mother stated that her siblings are not willing for the settlement, there is nothing to show that the parties had come to a compromise even at the time the suit was dismissed for default. After going through the averments in the affidavits filed in support of the applications and the objections thereto filed by the defendants, we are
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not persuaded to hold that the appellant has shown sufficient cause either for non appearance or for not filing an application to restore the suit to file, in time.
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satisfactory, we are left with no other alternative but to dismiss the appeal.
The appeals fails and is accordingly dismissed.
(P.N. Ravindran, Judge)
(R.Narayana Pisharadi, Judge)
kav/
3 issues framed by the court
Whether the appellant showed sufficient cause to condone a delay of nearly five years in filing an application to set aside an order dismissing a suit for default.
Whether the explanation regarding an alleged family settlement justifies the non-appearance and delay in restoring the suit to file.
Whether an order dismissing an application to condone delay and set aside a default judgment should be allowed on appeal.
Santhakumari
Devaki Amma
Madhavan Nair
Balamani Amma
Radhakrishnan
Ravindran
P.N. Ravindran
R. Narayana Pisharadi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
