Partition suit dismissed for default; counter claim decree over plaint A schedule based on a 1971 gift deed upheld despite 345-day delay in seeking setting aside. Suit restored for partition of B to E schedules; execution remanded for fresh consideration of commission application after hearing objections.
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. BADHARUDEEN
THURSDAY, THE 11TH DAY OF JULY 2024 / 20TH ASHADHA, 1946
CRP NO. 20 OF 2014
AGAINST THE JUDGMENT DATED 30.08.2013 IN CMA NO.7 OF 2012 OF I
ADDITIONAL DISTRICT COURT, KOLLAM ARISING OUT OF THE ORDER/JUDGMENT
DATED 21.10.2011 IN OS NO.139 OF 2006 OF APRINCIPAL SUB COURT, KOLLAM
REVISION PETITIONER/APPELLANT/PETITIONER:
LEELA
W/O.RAJAN, RADHA MANDIRAM,
PATTATHANAM, VADAKKEVILA VILLAGE,
KOLLAM TALUK, KOLLAM
BY ADVS.
T.KRISHNANUNNI (SR.)
MEENA.A.
VINOD RAVINDRANATH
M.R.MINI
ASHWIN SATHYANATH
K.C.KIRAN
M.DEVESH
ANISH ANTONY ANATHAZHATH
THAREEQ ANVER K.
RESPONDENT/RESPONDENT/RESPONDENT:
RADHAMMA
W/O.SREENIVASAN,
RESIDING AT RESHMI, PATTATHANAM,
VADAKKEVILA VILLAGE, KOLLAM TALUK,
KOLLAM-691001
BY ADV SRI.M.K.CHANDRA MOHANDAS
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 11.07.2024, ALONG
WITH CRP.24/2014, 43/2014 AND OPC 1776/2014, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
2
CRP NOs. 20, 24 & 43 OF 2014
& OP(C) NO. 1776 OF 2014
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
THURSDAY, THE 11TH DAY OF JULY 2024 / 20TH ASHADHA, 1946
CRP NO. 24 OF 2014
AGAINST THE JUDGMENT DATED 30.08.2013 IN CMA NO.8 OF 2012
OF I ADDITIONAL DISTRICT COURT, KOLLAM ARISING OUT OF THE
ORDER/JUDGMENT DATED IN OS NO.139 OF 2006 OF PRINCIPAL SUB
COURT, KOLLAM
REVISION PETITIONER/APPELLANT/PETITIONER:
LEELA
W/O.RAJAN, RADHA MANDIRAM,
PATTATHANAM, VADAKKEVILA VILLAGE,
KOLLAM TALUK, KOLLAM.
BY ADVS.
T.KRISHNANUNNI (SR.)
MEENA.A.
VINOD RAVINDRANATH
M.R.MINI
ASHWIN SATHYANATH
K.C.KIRAN
M.DEVESH
THAREEQ ANVER K.
RESPONDENT/RESPONDENT/RESPONDENT:
RADHAMMA
W/O.SREENIVASAN,
RESIDING AT RESHMI, PATTATHANAM,
VADAKKEVILA VILLAGE, KOLLAM TALUK,
KOLLAM - 691 001.
BY ADV SRI.M.K.CHANDRA MOHANDAS
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 11.07.2024, ALONG WITH CRP.20/2014 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRP NOs. 20, 24 & 43 OF 2014
& OP(C) NO. 1776 OF 2014
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
THURSDAY, THE 11TH DAY OF JULY 2024 / 20TH ASHADHA, 1946
CRP NO. 43 OF 2014
AGAINST THE JUDGMENT DATED 30.08.2013 IN CMA NO.9 OF 2012 OF I ADDITIONAL DISTRICT COURT, KOLLAM
REVISION PETITIONER/APPELLANT/PETITIONER:
LEELA
W/O.RAJAN, RADHA MANDIRAM, PATTATHANAM,
VADAKKEVILA VILLAGE, KOLLAM TALUK, KOLLAM.
BY ADVS.
VINOD RAVINDRANATH
MEENA.A., M.R.MINI
ASHWIN SATHYANATH
K.C.KIRAN, M.DEVESH
ANISH ANTONY, THAREEQ ANVER K.
RESPONDENTS/RESPONDENTS/RESPONDENTS:
1 SUBHADRA, W/O.SREENIVASAN,GEETHAMANDIRAM, KOIVILA P.O., KOLLAM-691001.
2 RADHAMMA, W/O.SREENIVASAN, RESHMI, PATTATHANAM, VADAKKEVILA VILLAGE KOLLAM TALUK, KOLLAM 691 0013 SARASAMMA, W/O.REGHUDEVAN ROMESH VILLA, KUNLANGARA BHAGOM CHAVARA, KOLLAM, 691 0014 VALSALA, W/O.SOMARAJAN SREEPRIYA, THATTAMALA, KOLLAM 691 0015 LEKSHMI, (DIED) W/O.LATE RAGHAVAN LEKSHMI NIVAS, CHAVARA, KOLLAM 691 001 DEATH OF THE 5TH RESPONDENT IS RECORDED AND R1 TO R4 ALREADY IN THE PARTY ARRAY ARE RECORDED AS THE LRs OF THE DECEASED R5, AS PER ORDER DATED09.10.2014 ON MEMO BEARING CF NO.3637/14 IN CRP 43/14BY ADVS.
SRI.M.K.CHANDRA MOHANDAS, SMT.K.K.RAZIA
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 11.07.2024, ALONG WITH CRP.20/2014 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRP NOs. 20, 24 & 43 OF 2014
& OP(C) NO. 1776 OF 2014
4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
THURSDAY, THE 11TH DAY OF JULY 2024 / 20TH ASHADHA, 1946
OP(C) NO. 1776 OF 2014
AGAINST THE ORDER/JUDGMENT DATED IN OS NO.139 OF 2006 OF
PRINCIPAL SUB COURT, KOLLAM
PETITIONER:
LEELA
AGED 65 YEARS
W/O. RAJAN,RADHA MANDIRAM,
PATTATHANAM, VADAKKEVILA VILLAGE,
KOLLAM TALUK, KOLLAM DISTRICT, PIN-691010.
BY ADVS.
SRI.S.V.BALAKRISHNA IYER (SR.)
SRI.P.B.KRISHNAN
SRI.P.M.NEELAKANDAN
SRI.SABU GEORGE
SRI.P.B.SUBRAMANYAN
RESPONDENT/S:
RADHAMMA
W/O. SREENIVASAN,
'RESMI', PATTATHANAM, VADAKKEVILA VILLAGE,
KOLLAM TALUK, KOLLAM DISTRICT, PIN-691010.
BY ADVS.
SRI.M.K.CHANDRA MOHANDAS
SRI.M.L.JISHNU
SRI.PRATHEEK VISWANATHAN
SMT.K.K.RAZIA
SMT.SOBBY THOMAS
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
11.07.2024, ALONG WITH CRP.20/2014 AND CONNECTED CASES, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRP NOs. 20, 24 & 43 OF 2014
& OP(C) NO. 1776 OF 2014
5
COMMON ORDER/JUDGMENT
Dated this the 11th day of July, 2024
CRP Nos.20/2014, 24/2014 and 43/2014 have been
filed under Section 115 of the Code of Civil Procedure.
petition to set aside dismissal of the suit in time. Later after a long delay of 345 days, another petition also filed to set aside
CRP NOs. 20, 24 & 43 OF 2014
& OP(C) NO. 1776 OF 2014
6
the decree passed in the counter claim. The trial court dismissed all those petitions. Against which appeals also preferred before the District Court. The same were also dismissed. Now CRP Nos.20/2024 and 24/2024 have been filed challenging dismissal of setting aside the ex parte decree passed in the counter claim and dismissal of the delay petition there in. Similarly, CRP No.43/2024 has been filed to set aside the dismissal of the suit.
CRP NOs. 20, 24 & 43 OF 2014
& OP(C) NO. 1776 OF 2014
7
after discussing these matters in detail and finding fault with the medical certificate produced to substantiate the delay. On perusal of the records, it is discernible that the plaintiff who filed petition to set aside dismissal of the suit failed to seek the relief to set aside the ex parte decree in the counter claim, though the same is a fact known to the plaintiff on the date of filing petition to set aside dismissal of the suit. Hence, there is no justification to consider the delay of 345 days as rightly found by the trial court and the first appellate court.
CRP NOs. 20, 24 & 43 OF 2014
& OP(C) NO. 1776 OF 2014
8
of the fact that petition to set aside the dismissal of the suit
filed in time. In view of the above, dismissal of O.S.No.139/2006 stands partly set aside. That is to say, dismissal of the suit seeking partition of plaint B to E schedule properties stands set aside and the suit stands restored to that extent while confirming dismissal of the suit in relation to plaint A schedule property covered by the counter claim decree.
CRP NOs. 20, 24 & 43 OF 2014
& OP(C) NO. 1776 OF 2014
9
anomaly, execution petition is relegated back to the stage of appointment of commission with direction to the trial court to consider the commission application, afresh, after giving opportunity to the petitioner to file objection and then proceed with the trial. Interim stay in all these matters stand vacated.
Holding so, these matters stand disposed of as above. Registry is directed to forward a copy of this judgment to the Principal Sub Court, Kollam, for information and
further steps.
Sd/A. BADHARUDEEN JUDGE
nkr
10
CRP NOs. 20, 24 & 43 OF 2014 & OP(C) NO. 1776 OF 2014
APPENDIX OF OP(C) 1776/2014
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF E.P.NO. 413 OF 2011 IN
OS.NO. 139 OF 2006, SUB COURT, KOLLAM
DATED 26-7-2011
EXHIBIT P2 TRUE COPY OF THE B DIARY DATED NIL
EXHIBIT P3TRUE COPY OF THE APPLICATION, E.A.NO.
131 OF 2014 IN E.P.NO. 413 OF 2011 IN
O.S.NO. 139 OF 2006, SUB COURT, KOLLAM
DATED 23-1-2014
EXHIBIT P4TRUE COPY OF THE APPLICATION, E.A.NO.
132 OF 2014 IN E.P.NO. 413 OF 2011 IN
O.S.NO. 139 OF 2006, SUB COURT, KOLLAM
DATED 23-1-2014.
EXHIBIT P5TRUE COPY OF THE OBJECTION TO EXT. P4
FILED BY THE RESPONDENT DATED 28-6-2014
EXHIBIT P6TRUE COPY OF THE COMMON ORDER IN
E.A.NO. 131 OF 2014 AND E.A.NO. 132 OF
2014 IN E.P.413 OF 2011 IN O.S.NO. 139
OF 2006, SUB COURT, KOLLAM DATED 1-7-
2014.
RESPONDENTS EXHIBITS : NIL
3 issues framed by the court
Whether the ex parte decree on Radhamma's counter claim over plaint A schedule property and the 345-day delay in seeking its setting aside should be interfered with.
Whether dismissal of the suit for default should be set aside so as to restore partition of plaint B to E schedule properties.
Whether the execution court's order appointing a commissioner to measure the gift deed property without notice required interference.
1 provisions across 1 enactments
Leela
Radhamma
A. Badharudeen
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court