Dismissed

Elizabeth Kurian v. Roy Kurian

Kerala HC29 Oct 2019CRP/82/2018

Case brief

AI extract

What is this about?

Revision petitioners, the defendant in O.S. 257/2012, sought interference with the Common Judgment in C.M.A. Nos. 57 to 60/2017 which restored the suit and set aside an ex-parte decree. The High Court, finding no perversity in the appellate court's discretion and sufficient cause for delay, dismissed the petitions but directed disposal of the suit within six months.

What did the court decide?

Revision petitions dismissed. Suit to be disposed within six months.

Elizabeth Kurian Vs Roy Kurian — Property and Title | Kerala HC (2019)

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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 B.SUDHEENDRA KUMAR

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TUESDAY, THE 29TH DAY OF OCTOBER 2019 / 7TH KARTHIKA, 1941

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CRP.No.82 OF 2018

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AGAINST THE ORDER/JUDGMENT IN OS 257/2012 DATED 30-05-2017 OF MUNSIFF COURT, CHANGANACHERRY

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AGAINST THE ORDER/JUDGMENT IN CMA 57/2017 DATED 21-12-2017 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - IV, KOTTAYAM

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REVISION PETITIONER/S:

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ELIZABETH KURIAN

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AGED 42 YEARS, DAUGHTER OF KURIAN, WIFE OF JOSEPH ALEX, KATHUKALLUNKAL HOUSE, VAZHAPPALLY EASY VILLAGE, CHANGANASSERY TALUK, PRESENTLY RESIDING AT KANNIMALA PLANTATION QUARTERS, KDH TEA PLANTATION LIMITED, MUNNAR VILLAGE, DEVIKULAM TALUK, IDUKKI DISTRICT.

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BY ADV. SRI.M.S.MOHAMMED ANSARI

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RESPONDENT/S:

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ROY KURIAN

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AGED 45 YEARS, SON OF KURIAN, KUTHUKALLUNKAL HOUSE, VAZHAPPALLY EASY VILLAGE, VAZHAPPALLY EAST KARA, CHANGANASSERY TALUK.

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R1 BY ADV. SRI.RAJEEV V.KURUP

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29.10.2019, ALONG WITH CRP.83/2018, CRP.84/2018, CRP.85/2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Case No. CRP 82, 83, 84 and 85/18

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶19

PRESENT

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THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

¶21

TUESDAY, THE 29TH DAY OF OCTOBER 2019 / 7TH KARTHIKA, 1941

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CRP.No.83 OF 2018

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AGAINST THE ORDER/JUDGMENT IN OS 257/2012 DATED 30-05-2017 OF MUNSIFF COURT, CHANGANACHERRY

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AGAINST THE ORDER/JUDGMENT IN CMA 58/2017 DATED 21-12-2017 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - IV, KOTTAYAM

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REVISION PETITIONER/S:

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ELIZABETH KURIAN AGED 42 YEARS, DAUGHTER OF KURIAN, WIFE OF JOSEPH ALEX,KUTHUKALLUNKAL HOUSE, VAZHAPPALLY EASY VILLAGE,CHANGANASSERY TALUK, PRESENTLY RESIDING AT KANNIMALAPLANTATION QUARTERS, KDH TEA PLANATATIONS LIMITED,MUNNAR VILLAGE, DEVIKULAM TALUK,IDUKKI DISTRICT.

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BY ADV. SRI.M.S.MOHAMMED ANSARI

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RESPONDENT/S:

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ROY KURIAN

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AGED 45 YEARS, SON OF KURIAN,KUTHUKALLUNKAL HOUSE,VAZHAPPALLY EASY VILLAGE,VAZAPPALLY EAST KARA, CHANGANASSERY TALUK, PIN - 686 103.

¶31

R1 BY ADV. SRI.RAJEEV V.KURUP

¶32

THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29.10.2019, ALONG WITH CRP.82/2018, CRP.84/2018, CRP.85/2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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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 B.SUDHEENDRA KUMAR

¶36

TUESDAY, THE 29TH DAY OF OCTOBER 2019 / 7TH KARTHIKA, 1941

¶37

CRP.No.84 OF 2018

¶38

AGAINST THE ORDER/JUDGMENT IN OS 257/2012 DATED 30-05-2017 OF MUNSIFF COURT, CHANGANACHERRY

¶39

AGAINST THE ORDER/JUDGMENT IN CMA 59/2017 DATED 21-12-2017 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - IV, KOTTAYAM

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REVISION PETITIONER/S:

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ELIZABETH KURIAN

¶42

AGED 42 YEARS, DAUGHTER OF KURIAN, WIFE OF JOSEPH ALEX, KUTHUKALLUNKAL HOUSE, VAZHAPPALLY EASY VILLAGE, CHANGANASSERY TALUK, PRESENTLY RESIDING AT KANNIMALA PLANTATION QUARTERS, KDH TEA PLANTATIONS LIMITED, MUNNAR VILLAGE, DEVIKULAM TALUK, IDUKKI DISTRICT.

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BY ADV. SRI.M.S.MOHAMMED ANSARI

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RESPONDENT/S:

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ROY KURIAN AGED 45 YEARS, SON OF KURIAN, KUTHUKALLUNKAL HOUSE, VAZHAPPALLY EASY VILLAGE, VAZAPPALLY EAST KARA, CHANGANASSERY TALUK, PIN-686103.

¶46

R1 BY ADV. SRI.RAJEEV V.KURUP

¶47

THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29.10.2019, ALONG WITH CRP.82/2018, CRP.83/2018, CRP.85/2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

¶48

Case No. CRP 82, 83, 84 and 85/18

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-4-

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶51

PRESENT

¶52

THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

¶53

TUESDAY, THE 29TH DAY OF OCTOBER 2019 / 7TH KARTHIKA, 1941

¶54

CRP.No.85 OF 2018

¶55

AGAINST THE ORDER/JUDGMENT IN OS 257/2012 DATED 30-05-2017 OF MUNSIFF COURT, CHANGANACHERRY

¶56

AGAINST THE ORDER/JUDGMENT IN CMA 60/2017 DATED 21-12-2017 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - IV, KOTTAYAM

¶57

REVISION PETITIONER/S:

¶58

ELIZABETH KURIAN

¶59

¶60

BY ADV. SRI.M.S.MOHAMMED ANSARI

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RESPONDENT/S:

¶62

ROY KURIAN

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AGED 45 YEARS, SON OF KURIAN, KUTHUKULLUNKAL HOUSE, VAZHAPPALLY ESY VILLAGE, VAZAPPALLY EAST KARA, CHANGANASSERY TALUK, PIN-686103.

¶64

R1 BY ADV. SRI.RAJEEV V.KURUP

¶65

THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29.10.2019, ALONG WITH CRP.82/2018, CRP.83/2018, CRP.84/2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

¶66

Case No. CRP 82, 83, 84 and 85/18

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O R D E R

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The above Revision Petitions have been filed by the defendant in O.S. No.257 of 2012 against her brother, who is the plaintiff in the suit.

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O.S. No.257 of 2012 was a suit for declaration

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of boundary and for consequential reliefs. The defendant filed counter claim. The suit was dismissed for default on 13.11.2015. The counter claim was decreed ex-parte on 22.9.2016. I.A. No.104 of 2017 was filed for restoration of

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the suit and I.A. No.649 of 2017 was filed to set aside the ex-parte order. I.A.No.103 of 2017 was filed for condoning the delay of 395 days in filing I.A. No.104 of 2017. I.A. No.648 of 2017 was filed for condoning the delay of 165

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Case No. CRP 82, 83, 84 and 85/18

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days in filing I.A. No.649 of 2017. The trial court

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dismissed all the above said interlocutory applications, against which the respondent herein filed appeal. The appellate court, as per common judgment in C.M.A.Nos.57 of 2017 to 60 of 2017 set aside the common order passed by the trial court and allowed the above said interlocutory applications on a cost of Rs.5000/- The appellate court allowed I.A. No.104 of 2017 and restored the suit condoning the delay of 395 days in filing the application by allowing I.A. 103 of 2017. The appellate court also allowed I.A. No.649 of 2017 and set aside the ex-parte decree condoning the delay of 165 days in filing the said application by allowing I.A.No.648 of 2017. Against the said common order in the said Civil Miscellaneous Appeals, these revision petitions have been filed by the

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Case No. CRP 82, 83, 84 and 85/18

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defendant in the suit.

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Heard both sides.

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The contention of the plaintiff is that the plaintiff

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was working abroad. He was represented by a lawyer throughout. The case was listed on 13.11.2015 for trial. On that day, he was abroad and his counsel did not inform him about the date of posting of the case and its purpose. Thereafter, he returned to India on 15.2.2016 in connection

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with the treatment of his mother and he left for abroad on 24.2.2016. Therefore, he was unable to contact his lawyer. Again he reached India on 28.4.2016 and he was laid up for three months. Consequently, he could not contact his counsel and enquire about the case. Thereafter he approached his counsel during August 2016. There was also settlement talks during July to September 2016. The

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Case No. CRP 82, 83, 84 and 85/18

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counter claim was decreed on 22.9.2016. Then only it was

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brought to his notice that there was a counter claim. Therefore, there occurred a delay in filing restoration application and application for setting aside the ex-parte decree.

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To prove the case of the plaintiff, the plaintiff

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himself was examined as PW1. He had reiterated his contentions in the affidavit when he was examined as PW1.

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The appellate court found that the trial court did not enter into a finding that the plaintiff had failed to establish sufficient cause. It appears that the appellate court had exercised its discretion and allowed the restoration petition and the application for setting aside the ex-parte decree, condoning the delay. When the appellate court had exercised its discretion and allowed the applications, this court will

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Case No. CRP 82, 83, 84 and 85/18

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not be justified in interfering with the same, unless the finding of the appellate court is perverse. I have gone through the order passed by the trial court and the judgment of the appellate court and I am satisfied that there is sufficient cause to condone the delay in filing the applications. I am further satisfied that there was sufficient cause for the absence of the plaintiff before the court. I am also satisfied that there is nothing on record to indicate that the plaintiff was grossly negligent. That apart, the parties are brother and sister. Therefore, it is only just and proper to grant an opportunity to the parties to settle the dispute on

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merits. In the meantime, if they get an opportunity to settle the matter amicably, that will lead to maintaining the cordial relationship between the brother and the sister. Suffice it to say that having gone through the relevant

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Case No. CRP 82, 83, 84 and 85/18

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inputs, I do not find anything to hold that the common judgment passed by the appellate court suffers from any

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illegality, impropriety or incorrectness warranting interference by this court.

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In the result, these Revision Petitions stand dismissed.

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However, since the suit is of the year 2012, the trial court is directed to dispose of O.S.No.257 of 2012, in accordance with law, as expeditiously as possible and at any rate, within six months from the date fixed for the appearance of the parties before the trial court.

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The parties shall appear before the trial court on 25.11.2019 without further notice.

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B. SUDHEENDRA KUMAR, JUDGE .

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dl/

Elizabeth Kurian v. Roy Kurian

Case brief

What is this about?

What did the court decide?

Elizabeth Kurian v. Roy Kurian

Case brief

What is this about?

What did the court decide?

What the court decided

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