Dismissed

Kariyadan Chandri @ Lakshmi v. Koyitti Rajan

Kerala HC2 Dec 2021FAO/123/2014

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed this first appeal against an order dismissing applications to set aside an ex-parte preliminary decree in a partition suit. The court held the 221-day delay by appellants, who resided in Chennai, was unsubstantiated. It also found no fraud in the suit as appellants were parties to the prior decree underlying the current partition action.

What did the court decide?

The appeal is dismissed; the order of the learned Sub Judge dismissing the applications is affirmed. No costs.

Kariyadan Chandri @ Lakshmi Vs Koyitti Rajan — Partition | Kerala HC (2021)

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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 ANIL K.NARENDRAN

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 2^ND DAY OF DECEMBER 2021/11TH AGRAHAYANA, 1943

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F.A.O.NO. 123 OF 2014

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AGAINST THE ORDER DATED 08.01.2014 IN I.A.NOS.2572 AND 2573 OF 2011 IN O.S.NO.32 OF 2006 OF THE PRINCIPAL SUB

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COURT, THALASSERY

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APPELLANTS:

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1 KARIYADAN CHANDRI @ LAKSHMI AGED 65 YEARS, W/O.KRISHNAN, DOOR NO.34/23, VENGATACHALAPATH STREET, SHENOY NAGAR, CHENNAI.

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2 SON VIJAYAN @ VIJAYAKUMAR, AGED 40 YEARS, DRIVER, DOOR NO.34/23, VENGATACHALAPATH STREET, SHENOY NAGAR, CHENNAI.

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3 BROTHER MANOJ KUMAR,

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AGED 35 YEARS, DOOR NO.34/23, VENGATACHALAPATH STREET, SHENOY NAGAR, CHENNAI.

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4 BROTHER PRADEP KUMAR, AGED 33 YEARS, DOOR NO.34/23, VENGATACHALAPATH STREET, SHENOY NAGAR, CHENNAI.

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5 BROTHER PRAVEEN KUMAR

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AGED 31 YEARS, DOOR NO.34/23, VENGATACHALAPATH STREET, SHENOY NAGAR, CHENNAI.

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6 PRAVEESH KUMAR @ PRADEESH KUMAR AGED 30 YEARS, DOOR NO.34/23, VENGATACHALAPATH STREET, SHENOY NAGAR, CHENNAI.

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BY ADV SRI.P.SAJU

F.A.O.No.123 of 2014

RESPONDENTS:

1 KOYITTI RAJAN AGED 50 YEARS, S/O.KALYANI AMMA, BUSINESS, RATHINIVAS P.O., KAPPAD, THAZHECHOVVA.

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2 KOYITTI BHASKARAN AGED 46 YEARS, S/O.KALYANI AMMA, MADAYAN KANDIYIL HOUSE, P.O. THIKKODI, THROUGH P.A. HOLDER KOYITTI RAJAN, 1ST PLAINTIFF IN THE SUIT.

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3 KANNANGODE KOYITTI PARVATHI AMMA, AGED 75 YEARS, D/O.AMMALLU AMMA, PATTIAM AMSAM, KONGATTA DESOM.

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4 THOONERI ROHINI AMMA, AGED 65 YEARS, WEST ARASUMARAN ST.AMSIKAR, CHENNAI-30.

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5 SON MURALEEDHARAN TRADER, 47-V.M. STREET, CHATPAT, CHENNAI-30.

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6 SISTER USHA, AGED 43 YEARS NO OCCUPATION, V.M.STREET, CHATPAT, CHENNAI-30.

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7 BROTHER SATHEESH KUMAR, AGED 40 YEARS, TRADER, 47-V.M.STREET, CHATPAT, CHENNAI-30.

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8 SISTER RAJANI, AGED 35 YEARS,NO OCCUPATION, 47-V.M.STREET, CHATPAT, CHENNAI-30.

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9 BROTHER VINU, AGED 31 YEARS, NO OCCUPATION, 47-V.M.STREET, CHATPAT, CHENNAI-30.

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F.A.O.No.123 of 2014

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10	PATTRATH MADHAVI AMMA (DIED) W/O.RAMAN NAIR, NO OCCUPATION, P.O.SANKARANELLUR.
11*	KRISHNAN ADIYODI
	S/O.MADHAVI AMMA, PATTRATH, P.O.SANKARANELLUR.
12*	JANAKI AMMA
	D/O.MADHAVI AMMA, 47-V.M.STREET, CHATPAT, CHENNAI-30.
13*	NANU ADIYODI, S/O.MADHAVI AMMA, 47-V.M.STREET, CHATPAT, CHENNAI-30.
14*	SARDDHA AMMA, D/O.MADHAVI AMMA, 47-V.M.STREET, CHATPAT, CHENNAI-30.
15*	LAKSHMI AMMA, D/O.MADHAVI AMMA, 47-V.M.STREET, CHATPAT, CHENNAI-30.
16*	BALAN,
	S/O.MADHAVI AMMA, 47-V.M.STREET, CHATPAT, CHENNAI-30.
	*LRS OF DECEASED R10 ARE RECORDED AS R11 TO R16 VIDE ORDER DATED 19.07.2018 IN I.A.NO.369/2017.
	BY ADV SRI.P.U.SHAILAJAN

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THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR FINAL HEARING ON 17.11.2021, THE COURT ON 02.12.2021 DELIVERED THE FOLLOWING:

F.A.O.No.123 of 2014

JUDGMENT

Ajithkumar, J.

The appellants are defendants 8 to 13 in O.S.No.32 of 2006 on the file of the Principal Sub Court, Thalassery. The suit was decreed on 22.08.2008 passing a preliminary decree for partition. The appellants were set exparte. They filed I.A.No.2573 of 2011 for setting aside the preliminary exparte decree along with I.A.No.2572 of 2011 for condonation of delay of 221 days in filing the application to set aside the exparte decree. Both those applications were dismissed on 08.01.2014. This appeal was filed assailing the said common order.

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Heard the learned counsel appearing for the appellants and the learned counsel appearing for respondents 1 and 2. Other respondents did not choose to appear in the appeal.

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O.S.No.32 of 2016 was filed by respondents 1 and 2 for partition of plaint C-schedule property. Respondents 1 and 2-plaintiffs and defendants in the suit were also parties to O.S.No.216 of 1983 before the Munsiff's Court,

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F.A.O.No.123 of 2014

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Koothuparamba. That suit was decreed on 30.06.1987 by passing a preliminary decree for partition. In the final decree application, a compromise petition was filed and accordingly a final decree was passed, a copy of which is Ext.B5. Share of these appellants and respondents was allotted together since they did not claim separate allotment by paying court fees. In order for partition of the property so jointly allotted, the present suit, O.S.No.32 of 2006, was filed.

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The appellants contend that they have been residing at Chennai and summons on the suit were not served on any one of them. It is understood that a paper publication was taken out in the suit, but they did not know about it. Only on getting notice on the final decree application, they knew about the suit. After that, the matter was referred to the Adalath and as the matter could not be settled, the appellants filed the present applications for condoning the delay of 221

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days and to set aside the exparte decree. It is further contended that suppressing a partition deed entered into earlier, the suit was filed and the respondents thereby played

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F.A.O.No.123 of 2014

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fraud upon the court.

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Respondents 1 and 2 filed counter. They contended that the final decree was passed in the earlier suit on the basis of a compromise entered into between the parties to that suit, including the appellants. The present suit is one for partition and allotment of separate shares from the property set apart to the parties hereto as per that decree, Ext.B5. It is therefore incorrect to say that there was malafides on the part of respondents 1 and 2 in filing the suit. It is further contended that the appellants did not know about the pendency of the suit is incorrect. At least, immediately after getting information about the suit on 20.11.2010, as they claimed, they should have filed application for setting aside exparte decree. They did not. There were laches on their part and there is no reason for condoning the delay or to set aside the decree. As a matter of fact, they have no valid contentions in the suit also.

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The learned Sub Judge after considering the oral evidence of PW1, who is the 1^st appellant and the documents,

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F.A.O.No.123 of 2014

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Exts.A1 to A5(b) and B1 to B14, dismissed the applications holding that the delay was not properly explained and no sufficient reason to set aside the exparte decree is substantiated.

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The learned counsel for the appellants would

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contend that the paper publication made in the suit has never

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come to their notice, who have been residing at Chennai since long, and therefore, the applications should have been allowed. They have raised a contention that the suit was filed fraudulently and by suppressing material facts and for that reason also the decree has to be set aside. The learned counsel appearing for respondents 1 and 2, on the other hand, contended that prayer in the suit was for partition of the property allotted to the plaintiffs and defendants in O.S.No.32 of 2006 as per Ext.B5-decree in the earlier suit. The contention of the appellants now is that a partition deed executed, copy of which is Ext.A1, as early as on 17.03.1984, was not disclosed while filing O.S.No.32 of 2006, and therefore, fraud was played upon the court.

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F.A.O.No.123 of 2014

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The final decree in O.S.No.216 of 1983 was passed on 30.09.2000. There is no dispute that Ext.B4 compromise was entered into between the parties to O.S.No.216 of 1983 and the final decree was passed in accordance with that compromise. The allotment of shares could only be in terms of the compromise which was given the seal of the court by passing the final decree. When such a final decree was passed, with the appellants also in the array of parties, it is not able to say that there was fraud in filing O.S.No.32 of 2006. For effecting metes and bounds partition of the property jointly allotted as per Ext.B5 decree alone the present suit has been filed. Dehors such a partition deed, a final decree, Ext.B5 was come to be passed. The appellants are parties to it. When a suit based only on that decree is filed, the appellant cannot be heard to contend that the suit has been perpetuated by fraud. Normally those aspects are

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not germane for consideration in this matter, since the question is only whether there was sufficient reason for condoning the delay and for setting aside the exparte decree.

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F.A.O.No.123 of 2014

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But in the peculiar nature of the facts of this case and as the appellants raised such contentions it has become obligatory for this Court to consider those contentions and enter into the findings.

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The appellants submit that they knew about the

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suit on 20.11.2010. They entered appearance in the final decree proceedings in O.S.No.32 of 2006 as well. But they waited for long for filing the present applications for setting aside the exparte decree. Had they really been of the view that respondents 1 and 2 played fraud upon the court and the decree was liable to be set aside, they should have filed application for the same without any delay. They participated in the Adalath in their attempt to reach a resolution with respect to the allotment of shares, which was the dispute involved in the final decree proceedings. After attempting that only they came forward with the application and by that time there occurred a delay of 221 days. Even on accepting that they did not know about the paper publication made in the suit, the reasons stated for condonation of delay of 221 days

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F.A.O.No.123 of 2014

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cannot be appreciated. The conclusion is irresistible, the delay remains unexplained. In view of that matter, the findings and decision to dismiss the applications of the learned Sub Judge are not liable to be interfered with. Hence, we hold that the appeal is only to be dismissed and we do so. No costs.

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Sd/ANIL K. NARENDRAN, JUDGE

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Sd/-

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P.G. AJITHKUMAR, JUDGE

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dkr

Kariyadan Chandri @ Lakshmi v. Koyitti Rajan

Case brief

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Kariyadan Chandri @ Lakshmi v. Koyitti Rajan

Case brief

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