Allowed

Antony a P v. John Manavalan

Kerala HC23 Feb 2018OP(C)/521/2018

Case brief

AI extract

What is this about?

The High Court of Kerala set aside the Sub Court's order dismissing a restoration application in a partition suit in a writ petition under Article 226. The Court observed that the death of defendant number 2 rendered further notice dispensable and ordered a remittal. The application was restored to the trial court file to be heard afresh within two weeks.

What did the court decide?

The impugned order set aside; the application restored to the trial court for fresh hearing; the trial court directed to pass orders after hearing all parties within two weeks.

Antony a P Vs John Manavalan — 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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FRIDAY, THE 23RD DAY OF FEBRUARY 2018 / 4TH PHALGUNA, 1939

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OP(C).No. 521 of 2018

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OS 279/2005 OF II ADDITIONAL SUB COURT, THRISSUR

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PETITIONER:

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ANTONY A P, AGED 67, S/O ALANGOTTU MANAVALAN PORINCHU, CHOORAKATTUKARA, PUZHAKKEL VILLAGE, THRISSUR DISTRICT

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BY ADV.SRI.M.K.DILEEP KUMAR

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RESPONDENT(S):

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1. JOHN MANAVALAN,

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AGED 73, S/O ALANGOTTU MANAVALAN PORINCHU, NO.XII-A HILL

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PARK APARTMENT, KAKKANAD, ERNAKULAM DISTRICT.PIN 692

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2. CHERIAN,

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AGED 68, S/O ALANGOTTU MANAVALAN PORINCHU,

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CHELEKOTTUKARA, THRISSUR DISTRICT.PIN 680 006

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3. MANI,

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AGED 60, S/O ALANGOTTU MANAVALAN PORINCHU,

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CHELEKOTTUKARA, THRISSUR DISTRICT.PIN 680 006

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4. VARGHESE,

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AGED 61, S/O ALANGOTTU MANAVALAN PORINCHU,

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CHELEKOTTUKARA, THRISSUR DISTRICT.PIN 680 006

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5. THOMAS,

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AGED 52, S/O ALANGOTTU MANAVALAN PORINCHU,

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CHELEKOTTUKARA, THRISSUR DISTRICT.PIN 680 006

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6. MARY,

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AGED 54, W/O PANDARA VALAPPIL PAUL,

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POST KANDASSAMKADAVU, THRISSUR DISTRICT. PIN 680

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7. PAUL P.V.,

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AGED 78, PANDARAVALAPPIL, MISSION QUARTERS,

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THRISSUR DISTRICT,PIN 680 006

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8. REENA,

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AGED 47 D/O PANDARAVALAPPIL PAUL, MISSION QUARTERS,

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THRISSUR DISTRICT,PIN 680 006

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PBS

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OP(C).No. 521 of 2018

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9. REKHA

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AGED 41, D/O PANDARAVALAPPIL PAUL, MISSION QUARTERS, THRISSUR DISTRICT,PIN 680 006

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10. RENJU,

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AGED 37, S/O PANDARAVALAPPIL PAUL, MISSION QUARTERS, THRISSUR DISTRICT,PIN 680 006

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11. MERLIN,

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AGED 58, W/O ALANGOTTU MANAVALAN JOSE, MUNDUR, KAIPRAMBU VILLAGE, THRISSUR DISTRICT. PIN 680

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12. FRANCIS,

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AGED 32, S/O ALANGOTTU MANAVALAN JOSE, MUNDUR,

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KAIPRAMBU VILLAGE, THRISSUR DISTRICT. PIN 680

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13. DAVIES,

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AGED 29, W/O ALANGOTTU MANAVALAN JOSE, MUNDUR, KAIPRAMBU VILLAGE, THRISSUR DISTRICT. PIN 680

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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PBS

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OP(C).No. 521 of 2018 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1 TRUE COPY OF IA NO.1376/2017 IN OS NO.279/2005 FILED BY THE PETITIONER BEFIORE THE SUB COURT, THRISSUR EXHIBIT P2 TRUE COPY OF THE COUNTER FILED BY THE SECOND RESPONDENT AGAINST THE EXT.P1 EXHIBIT P3 TRUE COPY OF THE ORDER IN IA NO.1376/2017 IN O.S NO.279/2005 DTD 18-09-2017 OF THE SECOND ADDITIONAL SUB JUDGE, THRISSUR

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RESPONDENT'S EXHIBIT NIL

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/TRUE COPY/ PA TO JUDGE

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PBS 16/3/2018

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ALEXANDER THOMAS, J.

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O.P.(C) No.521 of 2018

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Dated this the 23^rd day of February, 2018

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JUDGMENT

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The prayers in this Original Petition (Civil) filed under the enabling provisions contained in Article 227 of the Constitution of India are as follows :

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(I) Declare that Ext.P3 order of the Second Additional Sub Judge, Thrissur, is not the outcome of the proper appreciation of facts on record and the law and therefore, the said order is liable to be interfered with thereby giving opportunity to the petitioner to prosecute Ext.P1 application to its logical termination ;

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(II) Set aside Ext.P3 order of the Second Additional Sub Judge, Thrissur, and issue appropriate order or direction to the Second Additional Sub Judge to proceed with Ext.P1 application from the stage on which Ext.P3 dismissal order is passed;

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Heard Sri.M.K.Dileep Kumar, learned counsel appearing for the petitioner/first plaintiff. In the nature of the orders proposed to be passed in this Original Petition (Civil) notice to the respondents will stand dispensed with.

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The petitioner herein is the first plaintiff in O.S.No.279 of 2005 on the file of the II Additional Sub Court, Thrissur. The suit is for partition. The suit was dismissed consequent to the dismissal of the application filed by the petitioner for adjournment of the trial. It is

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O.P.(C) No.521/18

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: :2::

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averred that thereafter the petitioner had filed Exhibit-P1 application for restoration of the suit and in Exhibit-P1 application, the death of the second plaintiff as well as that of the second defendant has been duly stated and it has been specifically shown in the cause title of Exhibit-P1 I.A.No.1376 of 2017 that R2 therein/defendant No.2 in the suit has died. It is also stated that the LRs. of the abovesaid deceased parties have also been impleaded in Exhibit-P1 I.A. and that among the respondents in Exhibit-P1 I.A., the third respondent therein has filed Exhibit-P2 counter/objection opposing the prayer in Exhibit-P1 restoration application. It is also stated that on 18.9.2017, when Exhibit-P1 I.A. was taken up for consideration, the lower court without ascertaining the correct factual situation from the counsel for the petitioner, had dismissed Exhibit-P2 I.A. as per the impugned Exhibit-P3 order dated 18.9.2017. It is this order at Exhibit-P3 that is challenged by the petitioner. The impugned Exhibit-P3 order reads as follows :

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“Notice of R9 returned as unclaimed. Counsel absent. No representation. In spite of repeated direction not taken steps against R2 so far. Hence I.A. is dismissed.”

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One of the main grounds stated in Exhibit-P3 order is that the petitioner has not taken steps to complete service of notice as against R2 in that I.A. so far. Further it is also stated that notice on R9 has been returned

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as unclaimed. It is also stated that the counsel was absent. A bare perusal of the cause title of Exhibit-P1 I.A.No.1376 of 2017 given on

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O.P.(C) No.521/18

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: :3::

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page No.10 of this paper book would clearly show that R2 therein/defendant No.2 in the suit has died. In view of this the matter requires remit. For such a remit, there is no necessity to issue notice to all the respondents as all those parties could be heard by the trial court before passing orders consequent to this remit.

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Accordingly, it is ordered in the interest of justice that the impugned Exhibit-P3 order will stand set aside. Consequently it is ordered that Exhibit-P1 I.A.No.1376 of 2017 will stand restored to the file of the trial court concerned. The trial court will pass fresh orders on Exhibit-P1 I.A. after hearing all the parties concerned, within a period of two weeks from the date of completion of service of notice on all the parties concerned. The trial court would specifically advert to the factual plea made by the petitioner that R2 in that I.A. is no more. The petitioner will produce a certified copy of this judgment before the trial court for necessary information.

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

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ALEXANDER THOMAS JUDGE

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csl

Antony a P v. John Manavalan

Case brief

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Antony a P v. John Manavalan

Case brief

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