Disposed

Komalavalli v. Snehalatha

Kerala HC14 Feb 2018OP(C)/411/2018

Case brief

AI extract

What is this about?

In a habeas corpus writ jurisdiction petition (O.P.C. No. 411 of 2018) under Article 227 of the Constitution, the petitioner sought directions to the Sub Court, Thrissur to expedite hearing of applications to restore previous applications set aside for default and to keep further proceedings in a partition suit in abeyance.

What did the court decide?

Ordered the Sub Court to dispose of pending applications Exts.P7 to P9 within two weeks and deferred further proceedings in the final decree of O.S.No.889/2011.

Komalavalli Vs Snehalatha — Partition | 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 ALEXANDER THOMAS

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WEDNESDAY, THE 14TH DAY OF FEBRUARY 2018 / 25TH MAGHA, 1939

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OP(C).No. 411 of 2018

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---------------------OS 889/2014 OF 1ST ADDITIONAL SUB COURT, THRISSUR --------------

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PETITIONER

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KOMALAVALLI, AGED 77, W/O KARAYIL THEKOOT BHANUPRAKASH, VALAPPAD VILLAGE, CHAVAKKAD TALUK, THRISSUR

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BY ADV.SRI.G.SREEKUMAR (CHELUR)

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RESPONDENT(S):

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1. SNEHALATHA, AGED 56, D/O KARAYIL THEKOOT VASUDEVAN, W/O KOTTAMKULAM BHARATHAN, CHUNGAM DESOM, MANAVALASSERY VILLAGE, MUKUNDAPURAM TALUK 68001

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2. JUVANA, AGED 50,D/O KARAYIL THEKOOT VASUDEVAN W/O CHULLIPARAMBIL MANOJ, KOORKANCHERY VILLAGE DESOM, THRISSUR TALUK 68001.

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3. GEETHA, AGED 54, D/O KARAYIL THEKOOT BHANUPRAKASH, VALAPPAD VILLAGE, CHAVAKKAD TALUK, THRISSUR 68001

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4. ANITHA, AGED 52, D/O KARAYIL THEKOOT BHANUPRAKASH, VALAPPAD VILLAGE, CHAVAKKAD TALUK, THRISSUR 68001

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5. SUNITHA,

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AGED 50, D/O KARAYIL THEKOOT BHANUPRAKASH, VALAPPAD VILLAGE, CHAVAKKAD TALUK, THRISSUR 68001

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6. HARSHAN @ KUTTAN, AGED 47, S/O KARAYIL THEKOOT VASUDEVAN, VALAPPAD VILLAGE, CHAVAKKAD TALUK, THRISSUR 68001

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7. PRAKASAN, AGED 45, S/O KARAYIL THEKOOT VASUDEVAN VALAPPAD VILLAGE, CHAVAKKAD TALUK, THRISSUR 68001

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8. PADMAKSHY, AGED 73, W/O KARAYIL THEKOOT VASUDEVAN VALAPPAD VILLAGE, CHAVAKKAD TALUK, THRISSUR 68001

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 14-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.V.

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OP(C).No. 411 of 2018 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1	A TRUE COPY OF THE PLIANT IN OS NO.889 OF 2011 ON THE FILE OF THE ADDL.SUB COURT, THRISSUR DATED 28-6-2011
EXHIBIT P2	A RUE COPY OF THE JUDGMENT IN OS NO.889 OF 2014 DATED 12-07-2013 ON THE FILE OF THE 1ST ADDL. SUB COURT, THRISSUR
EXHIBIT P3	A TRUE COPY OF THE UNNUMBERED APPLICATION OF 2014 IN OS 889 2011 ON THE FILE OF THE 1ST ADDL. SUB COURT, THRISSUR DATED 14-3-2014
EXHIBIT P4	A TRUE COPY OF THE IA NO.1787 OF 2016 IN OS NO 889 OF 2011 ON THE FILE OF THE 1ST ADDL. SUB COURT, THRISSUR DATED 30-03-2016
EXHIBIT P5	A TRUE COPY OF THE IA NO.1786 OF 2016 IN OS NO.889 OF 2011 ON THE FILE OF THE 1ST ADDL. SUB COURT, THRISSUR DATED 1.4.2016
EXHIBIT P6	A TRUE COPY OF THE OBJECTION SUBMITTED BY THE FIFTH RESPONDENT IN EXT.P4 DATED 7-11-2016
EXHIBIT P7	A TRUE COPY OF THE IA NO.118 OF 2018 IN EXT.P5 IN OS NO.889 OF 2011 IS FILED DATED 4-1-2018
EXHIBIT P8	A TRUE COPY OF THE IA NO.120 OF 2018 IN EXT.P5 IN OS NO.889 OF 2011 IS FILED DATED 4-1-2018
EXHIBIT P9	A TRUE COPY OF THE IA NO.119 OF 2018 IN OS NO.889 OF 2011 IN EXT.P4 FILED DATED 4-1-2018

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RESPONDENTS EXHIBITS: NIL

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/TRUE COPY/ K.V. P.S.TO JUDGE 27.02.2018

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ALEXANDER THOMAS, J.

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==================

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O.P(C).No. 411 of 2018

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==================

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Dated this the 14^th day of February, 2018

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J U D G M E N T

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The prayer in this Original Petition (Civil) filed under the enabling

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provisions contained in Art.227 of the Constitution of India is as follows:

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“Issue an appropriate order or direction commanding the Sub court, Thrissur to take up Exts.P7 and P9 applications and to determine the same in a time bound manner and till such time, the final decree court, Sub Court, Thrissur is to be directed to keep in abeyance all further proceedings in the final decree pursuant to the judgment Ext.P-2, in the interest of justice.”

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Heard Sri.G.Sreekumar (Chelur), learned counsel appearing

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for the petitioner. In the nature of the order that is proposed to be passed in this petition, notice to the respondents will stand dispensed with.

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The petitioner herein is the 1^st defendant in O.S.No.889/2011 on the file of the I Addl. Sub Court, Thrissur, filed by 1^st and 2^nd respondents. The suit is filed for declaration of civil death, partition and separate possession of property as sought for by the plaintiffs. The plaint schedule property is 78 cents situated in sy No.542/5 of Edamuttom desom and covered by document bearing No.808 of 73 of the Thriprayar SRO. The case of the plaintiffs was that the plaint schedule property with other properties originally belonged to the grandmother of the plaintiffs and that she had 3 children, viz., Vasudevan, Bhanuprakash and Raghavan. That the plaintiffs and defendants 6 & 7 are the children of the said Vasudevan and the 8^th defendant is their mother. The 1^st defendant is the widow and

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O.P(C).No. 411/18 - : 2 :-

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defendants 2 to 5 are the children of the abovesaid Bhanuprakash. According to the plaintiffs, Vasudevan and Bhanuprakash died intestate and that nothing was heard about the other son, viz., Raghavan for the past 60 years and his whereabouts are not known. It is on this basis that the suit has been filed seeking declaration that the said Raghavan has undergone civil death and therefore his properties are liable to be partitioned and decree in that regard has to be granted, etc.

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It is further stated that none of the defendants has been served with summons or notice. It is alleged that in spite of the same, an ex parte preliminary decree was passed. Pursuant to the preliminary ex parte decree, final decree application was submitted by the plaintiffs and that the petitioner and others, who came to know of passing of the preliminary decree, filed application immediately for setting aside the ex parte decree and that there is a delay of 973 days in filing the application to set aside the ex parte decree. The application to set aside was accompanied by an application to condone the delay in filing the said application. It is further submitted that those applications for setting aside the ex parte decree as well as application to condone delay in that regard have been dismissed for default. That thereupon, the petitioner has filed Ext.Ps-7 to P-9 applications to restore the said earlier applications. It is further stated that in the meantime, the final decree court is proceeding with further proceedings therein including measurement of the property.

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O.P(C).No. 411/18 - : 3 :-

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Ext.P-4 is stated to be copy of I.A.No. 1787/2016 filed praying to set aside the impugned ex parte decree and Ext.P-5 I.A.No. 1786/2016 has been filed by the petitioner in the O.S. praying to condone the delay of 973 days in filing Ext.P-4 application to set aside the ex parte decree. It appears that Ext.P-4 and P-5 applications have been dismissed for default. Ext.P-7 I.A.No. 118/2018 has been filed by the petitioner seeking to condone the delay of 146 days in filing the application to restore I.A.No. 1786/2016. Ext.P-8 is the copy of I.A.No. 120/2018 filed by the petitioner seeking to restore I.A.No.1787/2016. Ext.P-9 is the copy of I.A.No. 119/2018 filed by the petitioner seeking to restore I.A.No. 1787/2016. I.A.Nos. 1786/2016 and 1787/2016 are said to be the applications earlier filed by the petitioner seeking to set aside the ex parte decree and for condonation of delay in filing the said application.

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The petitioner's limited prayer in this Original Petition (Civil) is that this Court may direct the I Addl. Sub Court, Thrissur to ensure the early disposal of Ext.P-7 to P-9 I.As. without much delay. It is also prayed that until orders are passed on Exts.P7 to P-9, further proceedings in the final decree application in O.S.No.889/2011 on the file of the I Addl. Sub Court Court, Thrissur may be ordered to be kept in abeyance, etc.

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Having regard to to the facts and circumstances of this case, it is ordered that in case Exts.P7 to P-9 I.As. are still pending consideration before the Court of I Addl. Sub Court, Thrissur, then the court shall take up

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O.P(C).No. 411/18 - : 4 :-

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Exts.P7 to P-9 without much delay, and will ensure the early disposal of the said I.As. after hearing both sides, without much delay, preferably within a period of two weeks from the date of production of a certified copy of this judgment. In case notice process on the respondents in Exts.P7 to P-9 I.As. has not so far been completed, then the petitioner will be permitted to serve notice on the respondents in the I.A. through the Advocates appearing for those parties before the court below concerned. Until orders passed as directed herein above, further proceedings in the final decree application in O.S.No. 889/2011 on the file of the I Addl. Sub Court, Thrissur will stand deferred. This order has been passed only for the limited purpose of preservation of the subject matter of lis to enable the petitioner to work out her remedies in accordance with law. The petitioner will produce a certified copy of this judgment before the court below concerned for necessary information.

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With these observations and directions, the aforecaptioned Original Petition (Civil) stands finally disposed of.

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sdk+

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Sd/- ALEXANDER THOMAS, JUDGE ///True Copy///

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P.S. to Judge

Komalavalli v. Snehalatha

Case brief

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Komalavalli v. Snehalatha

Case brief

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