Allowed

Kasinathan, v. Padmini

Kerala HC23 Feb 2022FAO (RO)/10/2020

Case brief

AI extract

What is this about?

High Court allowed three appeals against remand orders, setting aside the remand as a grave error. The court held the first appellate court relied on a death certificate for age determination without merits, violating Order XLI CPC. The matter remanded for fresh disposal.

What did the court decide?

All three appeals allowed. Order of remand set aside. Matter remanded to first appellate court for fresh disposal.

Kasinathan, Vs Padmini — Execution and Attachment | Kerala HC (2022)

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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 P.SOMARAJAN

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WEDNESDAY, THE 23^rd DAY OF FEBRUARY 2022 / 4TH PHALGUNA, 1943

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FAO (RO) NO. 9 OF 2020

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AGAINST THE JUDGMENT DATED 19.12.2017 IN OS No. 45/2016 OF SUB COURT,

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KOCHI

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AGAINST THE JUDGMENT DATED 30.03.2019 IN AS No.29/2018 OF ADDITIONAL

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DISTRICT COURT - VII, ERNAKULAM

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APPELLANTS (RESPONDENTS/PLAINTIFFS):

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1 A.G.SASEENDRANATH @ SHASHI NATH, AGED 69 YEARS, S/o GANESHA SHETTY, RESIDING AT C-701, ZINNEA, BAVDHAAN, PUNE-411021.

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2 G.S.NARENDRANATH, AGED 64 YEARS, S/o GANESHA SHETTY, RESIDING AT CC.X/264, AMARAVATHY, KOCHI-682001.

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3 G.S.KASINATH, AGED 56 YEARS, S/o GANESHA SHETTY, RESIDING AT C.C.X/26, AMARAVATHY, KOCHI-682001.

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BY ADVS. DINESH R.SHENOY

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SRI.EBIN MATHEW

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SRI.P.ROHIT PREMANANDAN SHENOY

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RESPONDENTS (APPELLANTS/DEFENDANTS):

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1 PADMINI, AGED 52 YEARS, D/o NARAYANA SHETTY, RESIDING AT CC.X/265, OPPOSITE KOKKERS THEATRE, AMARAVATHY, COCHIN-682002.

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2 USHA, AGED 49 YEARS, D/o NARAYANA SHETTY, RESIDING AT CC.X/265, OPPOSITE KOKKERS THEATRE, AMARAVATHY, KOCHI-682002.

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3 JAYAVANTHAN, AGED 55 YEARS, D/o NARAYANA SHETTY, RESIDING AT CC.X/265, OPPOSITE KOKKERS THEATRE,

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FAO (RO) Nos.9, 10 and 11 of 2020

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AMARAVATHY, KOCHI-682002. BY ADVS. SRI.SAJAN MANNALI SMT.SANTHI K.PAI SMT.V.N.SHASHIKALA SRI.AADITHYAN S.MANNALI SMT.ARATI PRAKASH SMT.ANJANA M VADHYAR SMT. ATHULYA MARTIN SRI. SONY P.G.

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THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR HEARING ON 23.02.2022, ALONG WITH FAO (RO).10/2020, 11/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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FAO (RO) Nos.9, 10 and 11 of 2020

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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 P.SOMARAJAN

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WEDNESDAY, THE 23^rd DAY OF FEBRUARY 2022 / 4TH PHALGUNA, 1943

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FAO (RO) NO. 10 OF 2020

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AGAINST THE JUDGMENT DATED 19.12.2017 IN OS No. 45/2014 OF SUB COURT,

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KOCHI

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AGAINST THE JUDGMENT DATED 30.03.2019 IN AS No.31/2018 OF ADDITIONAL

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DISTRICT COURT -VII, ERNAKULAM

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APPELLANTS (RESPONDENTS 1 TO 7, 10 & 11/DEFENDANTS 1 TO 7, 10 & 11:

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1 KASINATHAN, AGED 60 YEARS, S/o GANESHA SHETTY, RESIDING AT C.C. X/26, AMARAVATHY, KOCHI-682001.

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2 NARENDRANATH, AGED 64 YEARS, S/o GANESHA SHETTY, RESIDING AT C.C. X/264, AMARAVATHY, KOCHI-682001.

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3 A.G. SASEENDRANATH @ SHASHI NATH, AGED 69 YEARS, S/o GANESHA SHETTY, RESIDING AT C-701, ZINNEA, BAVDHAAN, PUNE-411021.

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4 SAROJA, AGED 67 YEARS, D/o GANESHA SHETTY AND W/o MURALEEDHARAN, RESIDING AT HOUSE NO.CC X/468, AMMAN KOVIL ROAD, AMARAVATHY, KOCHI-682001.

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5 CHANDRAMATHY, AGED 72 YEARS, D/o GANESHA SHETTY, W/o RAMACHANDRAN, RESIDING AT HOUSE NO. C.C.X/267, GOPALAKRISHNA TEMPLE ROAD, AMARAVATHY, KOCHI-682001.

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6 INDIRA, AGED 69 YEARS, D/o GANESHA SHETTY AND W/o RAJENDRAN, RESIDING AT HOUSE NO. C.C.X/270(765), NEAR J.D. TEMPLE, AMARAVATHY, KOCHI-682001.

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7 REMA BAI, AGED 60 YEARS, D/o GANESHA SHETTY AND W/o JAYACHANDRAN, RESIDING AT HOUSE NO. C.C.X/265, AMARAVATHY, KOCHI-682001.

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FAO (RO) Nos.9, 10 and 11 of 2020

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8 SULOCHANA, AGED 76 YEARS, D/o KASHINATHA SHETTY, W/o MURALEEDHARAN, RESIDING AT HOUSE NO. CC X/265, OPP. KOKKERS THEATRE, AMARAVATHY, KOCHI-682001. 9 SURENDRAN, AGED 75 YEARS, S/o SUBADRA AND GRANDSON OF KASHINATHA SHETTY, RESIDING AT HOUSE NO. CC X/265, OPP. KOKKERS THEATRE, AMARAVATHY, KOCHI-682001. BY ADVS. DINESH R.SHENOY SRI.EBIN MATHEW SRI.P.ROHIT PREMANANDAN SHENOY

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RESPONDENTS (APPELLANTS & RESPONDENTS 8 & 9/DEFENDANTS 8 & 9):

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1 PADMINI, AGED 52 YEARS, D/o NARAYANA SHETTY, RESIDING AT CC X/265, OPP. KOKKERS THEATRE, AMARAVATHY, KOCHI-682002. 2 USHA, AGED 49 YEARS, D/o NARAYANA SHETTY, RESIDING AT CC X/265, OPP. KOKKERS THEATRE, AMARAVATHY, KOCHI-682002.

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3 JAYAVANTHANAN, AGED 57 YEARS, D/o NARAYANA SHETTY, RESIDING AT CC X/265, OPP. KOKKERS THEATRE, AMARAVATHY, KOCHI-682001. 4 KANJANA N.S., AGED 62 YEARS, D/o NARAYANA SHETTY, 33, 2^nd FLOOR, SRINGANDHANAGAR, VISHWANEEDAM POST, BANGALORE-560091. BY ADVS. SRI.SAJAN MANNALI SRI.AADITHYAN S.MANNALI SMT.ANJANA M VADHYAR SRI. SONY P.G. SMT.V.N.SHASHIKALA SMT. ATHULYA MARTIN SMT.ARATI PRAKASH SMT.SANTHI K.PAI

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THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR HEARING ON 23.02.2022, ALONG WITH FAO (RO).9/2020 AND 11/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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¶52

FAO (RO) Nos.9, 10 and 11 of 2020

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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 P.SOMARAJAN

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WEDNESDAY, THE 23^rd DAY OF FEBRUARY 2022 / 4TH PHALGUNA, 1943

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FAO (RO) NO. 11 OF 2020

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AGAINST THE JUDGMENT DATED 19.12.2017 IN OS No.41/2017 OF SUB COURT,

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KOCHI

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AGAINST THE JUDGMENT DATED 30.03.2019 IN AS No.32/2018 OF ADDITIONAL

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DISTRICT COURT - VII, ERNAKULAM

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APPELLANTS (RESPONDENTS/DEFENDANTS):

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1 KASINATHAN SHETTY, AGED 60 YEARS, S/o GANESHA SHETTY, RESIDING AT CC X/265, AMARAVATHY, KOCHI - 682 001.

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2 LATHIKA, AGED 47 YEARS, W/o KASINATHAN SHETTY, CC.X/265, OPPOSITE KOKKERS THEATRE, AMARAVATHY, COCHIN - 682 001.

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3 NARENDRANATH, AGED 64 YEARS, S/o GANESHA SHETTY, RESIDING AT C.C.X/264, AMARAVATHY, COCHIN - 682 001.

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4 SAROJAM, AGED 55 YEARS, W/o NARENDRANATH, RESIDING AT HOUSE NO.CC.X/265, OPPOSITE KOKKERS THEATRE, AMARAVATHY, KOCHI - 682 001.

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BY ADVS. DINESH R.SHENOY SRI.EBIN MATHEW SRI.P.ROHIT PREMANANDAN SHENOY

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RESPONDENT (APPELLANT/PLAINTIFF):

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PADMINI, AGED 52 YEARS, D/o NARAYANA SHETTY, RESIDING AT CC X/265, OPP. KOKKERS THEATRE, AMARAVATHY, COCHIN - 682 002.

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THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR HEARING ON 23.02.2022, ALONG WITH FAO (RO).9/2020 AND 10/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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FAO (RO) Nos.9, 10 and 11 of 2020

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JUDGMENT

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The duty of the first appellate court is not to do any

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reverse driving on flimsy ground by ordering remand without going into the merits and demerits of the case and the

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dispute involved. That is what is actually done by the

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first appellate court in the instant case without adhering to the requirement for a remand and in violation of the mandate under Sections 23, 23A and 24 of Order XLI C.P.C. The legal position has been settled by this Court in

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Gopalakrishnan and Another v. Ponnappan and Others [2021 (5) KHC 548] .

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It is on an extraneous ground a remand of the matter was ordered without going into the merits and demerits of the adjudication rendered by the trial court and the decree and judgment were set aside for the said purpose. The first appellate court has committed a grave error in ordering remand of the matter, that too, by taking into consideration a document which was filed under Order

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XLI Rule 27 C.P.C. i.e. a death certificate of one Kasinathan Shetty who passed away as early as on 25/07/1960

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FAO (RO) Nos.9, 10 and 11 of 2020 7

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and went on considering the same based on the age of the deceased entered in that document and found that at the time of acquisition of right over immovable property, he was only a minor. The first appellate court did not understand the evidentiary value of a death certificate. Further, it is not discussed anywhere in the judgment whether it would come under the purview of Order XLI Rule 27 C.P.C. In fact, no sufficient reason was brought out to receive additional documents in the first appellate stage. No sufficient reason was also brought out why it was not produced at the trial stage. In fact, the said document has no much relevance regarding the age as entered in the document since it was not intended to record the age of the deceased. Hence, all the discussions made in that behalf by

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the first appellate court is highly extraneous and unwarranted.

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The age as that of the deceased who died as early as on 25/07/1960 in the death certificate may not get any relevance and evidentiary value except to the extent of proving the identity of the deceased and the date of death. When it is related to the year 1960, it is too cumbersome

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FAO (RO) Nos.9, 10 and 11 of 2020 8

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to rely on such entry especially when it is not intended to record such entry. The basic principles governing acceptability of the evidence has been overlooked by the first appellate court. Hence, the order of remand is liable to be set aside. I do so. The matter is remanded back to the first appellate court for fresh disposal by attending all the disputes involved in the matter, for which the parties shall appear before that court on 03/03/2022. The first appellate court shall dispose of the matter within two weeks positively from the date of appearance and report compliance.

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All the appeals will stand allowed accordingly. No costs.

Sd/-

P.SOMARAJAN

JUDGE

DMR/-

Kasinathan, v. Padmini

Case brief

What is this about?

What did the court decide?

Kasinathan, v. Padmini

Case brief

What is this about?

What did the court decide?

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