The Kerala High Court preferred a two-judge bench Set aside the impugned order dismissing an application for restoration of an ordinary suit dismissed for default.
The order in IA No.621/2017 set aside and the suit O.S No.68/2013 restored on file.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN THURSDAY, THE 10TH DAY OF NOVEMBER 2022 / 19TH KARTHIKA,
1944
FAO NO. 107 OF 2018
IA 621/2017 IN OS 68/2013 OF SUB COURT, CHERTHALA
APPELLANTS/PETITIONER-PLAINTIFF:
ADDL. A2 VASANTHI K.K., AGED 59 YEARS
ADDL. A3 AMALJITH K.A., AGED 28 YEARS
ADDL. A4 THIRASIN K.A., AGED 27 YEARS
S/O. K.S. ARAVINDAKSHAN, KARIKKANAMCHERIL, EZHUPUNNA VILLAGE AND ERAMALLUR MURI, CHERTHALA TALUK, ALAPPUZHA DISTRICT -688537
ADDL. A5 SANDRA K.A., AGED 24 YEARS
(LEGAL HEIRS OF DECEASED APPELLANT ARE IMPLEADED AS ADDL. APPELLANTS 2 TO 5 AS PER THE ORDER DTD. 9/11/2022 IN IA 1/2022)
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BY ADVS. V.N.SANKARJEE V.N.MADHUSUDANAN S.SIDHARDHAN M.SUSEELA R.UDAYA JYOTHI M.M.VINOD
RESPONDENTS/COUNTER PETITIONERS-DEFENDANTS:
1 SHEEBA, AGED 51 YEARS W/O.AMBUJAKSHAN, AGED 51, KARIKKANAMCHERIL, EZHUPUNNA VILLAGE AND ERAMALLUR MURI, CHERTHALA TALUK, ALAPPUZHA DISTRICT-688537.
BY ADV SRI.R.RANJITH (MANJERI)
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 10.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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FAO No.107/2018
JUDGMENT
SHOBA ANNAMMA EAPEN, J.
The 1st appellant is the petitioner/plaintiff in IA No.621/2017 in OS No.68/2013 on the file of
the Sub Court, Cherthala.
together with his brother, Sri.Ambujakshan, is the joint owner of the plaint schedule property
obtained by them by virtue of a sale deed No.4320/1980 of the SRO, Kuthiyathode. O.S. No.68/2013 was filed by the 1st appellant for declaration and injunction. On the death of
Sri.Ambujakshan, his legal heirs filed O.S. No.89/2013, claiming partition of the plaint schedule property. Thereafter, IA No.220/2017 was filed for joint trial of above two suits, which
was allowed. Accordingly, the suits were posted
for joint trial on 06.09.2017. However, due to
health issues, the 1st appellant/petitioner/ plaintiff could not appear before the court below, consequent to which, O.S No.68/2013 was
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dismissed for default. Similarly, on 13.09.2017, an ex parte decree was passed in O.S No.89/2013, the suit for partition.
appellant filed IA No.621/2017 in O.S No.68/2017 for restoration of the suit, after condoning the
delay of 21 days in filing the restoration petition. The 1st appellant also filed IA
No.622/2017 in OS No.89/2013 to set aside the ex parte decree dated 13.09.2017 after condoning the delay of 21 days in filing the restoration petition. However, both the interlocutory applications were dismissed by the court below. Aggrieved by the order in IA No.621/2017 in OS No.68/2013, the 1st appellant has come up before this Court with this appeal. The order in IA
No.622/2017 in O.S No.89/2013 is not challenged in this appeal.
was dismissed for default on 06.09.2017. The
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reason stated by the 1st appellant was that due to arthritis–knee joint, he was undergoing treatment and the disease was in an aggravated form of swelling and pain on the knee, which disabled him to walk or travel. On coming to know about the dismissal of the suit, he filed IA No.621/2017 to restore the suit on file by condoning the delay of 21 days in filing the restoration petition.
The court below, being not satisfied with the reasons stated in the affidavit, dismissed IA No.621/2017.
difficult position to move or travel due to the illness and the only objection raised by the respondents was regarding the imposition of costs
for setting aside the petition. Though the learned counsel for the 1st appellant/petitioner/ plaintiff expressed his willingness to tender evidence and furnish documentary evidence, the court below did not permit the same.
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In the result, the appeal is allowed. The order in IA No.621/2017 is set aside. O.S No.68/2013 shall be restored on file. However, we make it clear that the decision in O.S No.68/2013
will be subject to the decision in O.S No.89/2013.
Sd/-
A. MUHAMED MUSTAQUE
JUDGE
Sd/-
SHOBA ANNAMMA EAPEN
JUDGE
bka/-
1 issue framed by the court
Whether to condone a delay of 21 days in filing an application for restoration of an ordinary suit dismissed for default.
K.S. ARAVINDAKSHAN (DECEASED) AND OTHERS
SHEEBA AND OTHERS
A. MUHAMED MUSTAQUE
SHOBA ANNAMMA EAPEN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
