Dismissed

Swaminathan v. Sadasivan

Kerala HC1 Feb 2019FAO/346/2013

Case brief

AI extract

What is this about?

This appeal by a defendant/partitioner concerns the dismissal of applications to condone a 1414-day delay in setting aside an ex-parte preliminary decree. The High Court dismissed the appeal, holding the petitioner failed to prove he was absent for treatment, noting his appearance in concurrent criminal cases.

What did the court decide?

The first appellate order dismissing the applications to condone delay and set aside the decree is affirmed.

Swaminathan Vs Sadasivan — Partition | 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 K.HARILAL

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THE HONOURABLE MRS. JUSTICE ANNIE JOHN

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FRIDAY ,THE 01ST DAY OF FEBRUARY 2019 / 12TH MAGHA, 1940

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FAO.No. 346 of 2013

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AGAINST THE ORDER/JUDGMENT IN OS 313/2005 of PRINCIPAL SUB COURT, PALAKKAD DATED 31-07-2013

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APPELLANT/PETITIONER:

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SWAMINATHAN, S/O. VELAPPAN, PARAPALLA KALAM, MYLAMPULLY, MUNDUR AMSOM, PALAKKAD.

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BY ADV. SRI.A.R.GANGADAS

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RESPONDENT/RESPONDENTS 1 & 3:

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1 SADASIVAN, S/O. SWAMINATHAN, PARAPALLA KALAM, MYLAMPULLY, MUNDUR AMSOM, PALAKKAD-678 592.

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2 CHANDRIKA, W/O. SWAMINATHAN, PARAPALLA KALAM, MYLAMPULLY, MUNDUR AMSOM, PALAKKAD-678 592.

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BY ADVS. SRI.M.L.SURESH KUMAR SRI.LIJU. M.P SRI.SAJAN VARGHEESE K.

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THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON

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01.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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FAO.No. 346 of 2013 2

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JUDGMENT

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K.HARILAL, J.,

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The petitioner is the defendant in O.S.No.313/2005 as

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well as the petitioner in IA. No.1928/2012 and I.A. No.1929/2012 filed therein.

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O.S.No.313/2005 was a suit for partition, filed by

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the respondents herein, and the said suit was decreed exparte. Then the petitioner filed the aforesaid I.A.No.1929/2012 to set aside the ex-parte preliminary decree and I.A.No.1928/2012 was filed to condone the delay of 1414 days, in preferring I.A.No.1929/2012. According to the petitioner, when the case was listed for trial, he was residing with his daughter at Thrissinapilly to pursue his treatment. So he could not meet his counsel and give instructions to defend the case. There was no wilful negligence or latches from his part in not appearing before the Court, when the case was called on for trial.

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The respondents filed objection stating that the petitioner was not suffering from any physical infirmity and

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FAO.No. 346 of 2013 3

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in fact, the petitioner was residing in Palakkad itself during the period, when the case was called on for trial on 11.07.2008. When the case came up for trial, several months after receipt of notice in I.A.No.424/2012, an application to pass a final decree, he has come forward with this application to protract the passing of a final Decree. That apart, during the period of delay, the petitioner appeared before the Judicial First Class Magistrate Court-II, Palakkad in the criminal cases, pending before that Court against him. In the aforesaid contentions, the respondents prayed for dismissal of the aforesaid petition to condone the delay of 1414 days.

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The petitioner was examined as PW1 and no document was produced to substantiate his contention that he was residing with his daughter at Thrissinappilly to pursue his treatment. There is an inordinate delay of 1414 days. No document was produced to prove any kind of treatment under which he was allegedly undergoing at Thrissinapily. During cross examination, the petitioner himself admitted that he appeared before the Judicial First Class Magistrate Court, Palakkad in criminal cases during

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FAO.No. 346 of 2013 4

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the period of delay. Thus, the petitioner miserably failed to establish sufficient cause for condoning the delay. Consequently the Court below is justified in dismissing both interlocutory applications. We do not find any reason to interfere with the impugned order under challenge.

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The first appellate order will stand dismissed.

Sd/-

K.HARILAL

JUDGE

Sd/-

ANNIE JOHN

JUDGE

ajt

Swaminathan v. Sadasivan

Case brief

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Swaminathan v. Sadasivan

Case brief

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