Allowed

Sarada v. K.v.Viswambhara Panicker

Kerala HC25 Nov 2019OP(C)/3472/2017

Case brief

AI extract

What is this about?

This civil petition challenged an order allowing impleadment of additional plaintiffs ex parte. The High Court allowed the petition, setting aside the lower court order and directing a fresh disposal after hearing both sides.

What did the court decide?

Setting aside Ext.P5 order and directing the lower court to consider and dispose of IA No. 1776 of 2016 afresh with hearing to both sides.

Sarada Vs K.v.Viswambhara Panicker — Succession and Inheritance | Kerala HC (2019)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

¶4

MONDAY, THE 25TH DAY OF NOVEMBER 2019 / 4TH AGRAHAYANA, 1941

¶5

OP(C).No.3472 OF 2017(O)

¶6

IA 1776/16 IN OS 446/2009 OF MUNSIFF COURT, THIRUVALLA

¶7

PETITIONER/S:

¶8

*SARADA,W/O A.K.RAGHAVAN,AGED 79 YEARS,AMAKOTTU VEEDU,KIDANGOOR VILLAGE,PATHANAMTHITTA,ISTRICT689514. (DIED, LRS IMPLEADED)

¶9

ADDL 2 A R SURESH, S/O.LATE SARADA, AGED 53 YEARS, AMAKKOTTU HOUSE, KIDANGOOR PO, PATHANAMTHITTA – 689 514

¶10

ADDL 3 A R SUJA, D/O.LATE SARADA, AGED 49 YEARS -DOADDL 4A R SUMA, D/O.LATE SARADA, AGED 47 YERS -DO-

¶11

*** ADDL.PETITIONES 2 TO 4 IMPLEADED IN THIS OP(C) AS PER ORDER DATED 29.11.2018 IN IA 2/18. BY ADVS.**

¶12

SRI.G.UNNIKRISHNAN SRI.M.JAYAKRISHNAN

¶13

RESPONDENT/S:

¶14

1 K.V.VISWAMBHARA PANICKER,S/O VELAYUDHAN,AGED 71 YEARS,PERUMPALLATHU VEEDU,VALANJAVATTOM MURI,KADAPRA VILLAGE-689104.

¶15

2 K.N.VIJAYAMMA RAVIKUMARI,W/O.DIVAKARAN,AGED 65 YEARS,KALEECKAL VEEDU,PANDNADU VADAKKU MURI,PANDANADU VILLAGE,CHENGANOOR TALUK-689124.

¶16

3 ASOKAN,S/O BHASKARA PANICKER,AGED 57 YEARS,PERUMBALLATHU VEEDU,VALANJAVATTOM MURI,KADAPRA VILLAGE,THIRUVALLA TALUK-689104.

¶17

4 SHERLY J.N.PANICKER,W/O LATE.J.N.PANICKER,(AGE NOT KNOWN TO THE PETITIONER),GANAPATHY HOUSING SOCIETY,FLAT N0.4,BUILDING NO.E,COL.SHARMA COMPOUND,NGADI,PUNE-411044. ** DELETED

¶18

5 JISHA,D/O SHERLY J.N.PANICKER,-DO- -DO-. 6 LILJU,S/O SHERLY.J.N.PANICKER,-DO- -DO-.

¶19

**** THE 4TH RESPONDENT IS DELETED FROM THE ARRAY OF PARTIES IN THIS OP(C) AT THE RISK OF THE PETITIONER AS PER ORDER DATED 29.11.2018 IN IA 147/18.**

¶20

THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 25.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶21

Case No. OP(C) 3472/17 -2-

¶22

JUDGMENT

¶23

The original petitioner is the 2^nd respondent in I.A.

¶24

No.1776 of 2016 in O.S. No.446 of 2009 on the files of the

¶25

court below.

¶26

During the pendency of this Original Petition,

¶27

the petitioner died and hence, additional petitioner Nos.2 to 4 were impleaded as the legal heirs of the deceased

¶28

petitioner.

¶29

The original 2^nd plaintiff died during the

¶30

pendency of the suit. Therefore, the 1^st plaintiff filed I.A. No.1776 of 20016 praying for impleading additional plaintiff Nos.4 to 6 in the suit. The court below, as per Ext.P5 allowed the said application and permitted to

¶31

implead additional plaintiffs Nos.4 to 6. Ext.P5 order is

¶32

under challenge in this Original Petition.

¶33

Case No. OP(C) 3472/17

¶34

-3-

¶35

Service is complete. However, there is no

¶36

appearance for the respondents.

¶37

Heard the learned counsel for the petitioners.

¶38

It appears from Ext.P5 that additional respondents Nos.5 to 7 in I.A. No.1776 of 2016 were set ex-parte by the court below and thereafter, they were impleaded as additional plaintiff Nos.4 to 6 in the suit. The petitioner is the first defendant in the suit. The petitioner has contended that additional respondents in I.A. No.1776 of 2016 were set ex-parte by the court below as they were having no appearance before the court below even after the service of notice on them and hence, it has to be held that additional respondent Nos.5 to 7 in I.A.No.1776 of 2016 had abandoned the suit and consequently, the court below was not justified in impleading them as additional plaintiff Nos.4 to 6. The learned counsel for the petitioner has further submitted that even though the petitioner had field objection stating that even the date of death of the 2^nd plaintiff was not mentioned in the application, the court below did not consider the said aspect before passing

¶39

Case No. OP(C) 3472/17

¶40

-4-

¶41

Ext.P5 order. The learned counsel has submitted that even the court below is not aware as to whether there was abatement or not in the matter. It appears that the court below did not consider the above aspects before passing Ext.P5 order and in the said circumstances, Ext.P5 order cannot be sustained.

¶42

In the result, this Original Petition stands allowed, setting aside Ext.P5 order and the court below is directed to consider and dispose of I.A. No.1776 of 2016 afresh in accordance with law, affording reasonable opportunity of hearing to both sides.

¶43

¶44

B. SUDHEENDRA KUMAR, JUDGE .

¶45

dl/

¶46

Case No. OP(C) 3472/17

¶47

-5-

¶48

APPENDIX

¶49

PETITIONER'S/S EXHIBITS:

¶50

EXT.P1 TRUE COPY OF PLAINT IN O.S.446/09 OF THE MUNSIFF'S COURT,THIRUVALLA EXT.P2 TRUE COPY OF WRITTEN STATEMENT FILED BY THE 1ST DEFENDANT IN O.S.446/09 EXT.P3 TRUE COPY OF I.A.1776/16 IN O.S.446/09 EXT.P4 TRUE COPY OF THE COUNTER AFFIDAVIT FILED IN I.A.1776/16 EXT.P5 TRUE COPY OF THE ORDER DT.22.8.17 IN I.A.1776/16.

¶51

RESPONDENT'S/S EXHIBITS: NIL

Sarada v. K.v.Viswambhara Panicker

Case brief

What is this about?

What did the court decide?

Sarada v. K.v.Viswambhara Panicker

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

R.Mohanan Nair, Vs Sudhakaran Pillai

Lakshmikutty Vs Mahasudharsanam Corporation

Jayarajan Vs Mahasudharsanam Corporation

Sheeba Peter @ Sheeba Soman Vs Peter Kolamala Babu

Rajaneesh.T Vs M/S.Shriram Transport Finance Company Limited

Sundaram Finance Ltd. Vs K.M.Naveen