Dismissed

P.a.Varghese, v. Mrs.Linda Oommen

Kerala HC24 Jul 2024OP(C)/2552/2019

Case brief

AI extract

What is this about?

Supplemental defendants challenged a trial court order restoring a pending leave application under Section 92 CPC in a long-pending suit. The High Court held that although the plaintiffs' procedure was technically improper, no prejudice would result from reconsideration, declined to interfere, and directed disposal within three months.

What did the court decide?

Original Petition dismissed; trial court directed to dispose of I.A.No.1432/1990 within three months of receipt of judgment copy.

P.a.Varghese, Vs Mrs.Linda Oommen — Civil Procedure and Limitation | Kerala HC (2024)

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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 M.A.ABDUL HAKHIM

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WEDNESDAY, THE 24^TH DAY OF JULY 2024 / 2ND SRAVANA, 1946

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OP(C) NO. 2552 OF 2019

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AGAINST THE COMMON ORDER DATED 20.09.2019 IN I.A.NO.1259/2019 AND I.A.NO.1260/2019 IN OS NO.189 OF 1990 OF PRINCIPAL SUB COURT COURT, KOZHIKODE PETITIONERS/RESPONDENTS NO.14 AND 15 IN I.A.NO.1259/2019 AND I.A.NO.1260/2019 IN O.S.NO.189/1990:

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1 P.A.VARGHESE, AGED 72 YEARS S/O.PUTHENPURAYIL ABRAHAM, HOUSE NO.8/505, C/O.P.M.THOMAS, SUPPDT. VEPPUR ESTATE, TAMARACHERY KOZHIKODE TALUK - 673 573, NOW RESIDING AT “IVIA”, PUTHANPURAYIL, ALIKUNNU ROAD, KARADI, THAMARASSERY P.O., CALICUT - 673 573.

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2 LOUDAYIL ANNAMMA THOMAS, AGED 72 YEARS W/O.LATE P.A.THOMAS, RESIDING AT LOVEDALE, PUTHANPURAYIL, ALIKUNNU ROAD, KARADI, THAMARASSERY P.O. - 673 573.

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BY ADVS. M.R.HARIRAJ SRI.M.R.RAJENDRAN NAIR (SR.) SRI.K.RAJAGOPAL SHRI.VISWAJITH C.K SHRI. JAYRAJ M.B. SMT.GANGA A.SANKAR

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RESPONDENTS/PETITIONERS AND RESPONDENTS NO.1 TO 22 IN I.A.1259/2019 AND

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I.A.1260/2019 IN O.S.NO.189/1990:

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1 MRS.LINDA OOMMEN, D/O.MR.JACOB ALEXANDER, AGED 30 YEARS, CIRCUIT HOUSE, PALLIKUNNU, CANNANORE - 670 004, (AMENDED VIDE ORDER DATED 26/10/2013 IN I.A.NO.4038/2013) VILLA LAKE RETREAT, CHIRAKKAL, KANNUR - 670 011.

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2 SULTAN THOMAS OOMMEN,

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AGED 31 YEARS, SON OF 1ST PLAINTIFF AND 12TH DEFENDANT, (AMENDED VIDE ORDER DATED 26/10/2013 IN I.A.NO.4038/2013), CIRCUIT HOUSE, PALLIKUNNIL, CANNORE - 670 004.

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OP(C) NO. 2552 OF 2019

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3 MRS.BARBARA PAPALI, AGED 40 YEARS, W/O.LT.COL.PAPALI, 25 WELLINGTON STREET, BANGALORE- 560 025.

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4 MRS.LINDA OOMEN VIZ., 1ST PLAINTIFF, SECRETARY REPRESENTING THE ALL INDIAN ASSOCIATION FOR THE NATUROPATHY I.E., THE AIA (H & N) REGD., TAMRACHERI, REGISTERED AS SOCIETY NO.68 OF 1975 WITH THE DISTRICT REGISTRAR, CALICUT. PIN - 673 573. (AMENDED VIDE ORDER DATED 17/06/2015 IN I.A.NO.455/2015).

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5 T.M.VARGHESE, S/O.MATHAN, AGED 43 YEARS, C/O.JOHN THOMAS, HOUSE NO.3/1575, SHEELA VIHAR, NEAR 6TH RLY. GATE, NADAKKAVU P.O.,CALICUT -673 011.

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6 SUNNY THOMAS, S/O.KULANGARA IDUKKULA THOMAS, AGED 32 YEARS, RESIDING AT HOUSE NO.3/1575, SHEELA VIHAR, NEAR 6TH RLY.GATE, NADAKKAVU P.O., CALICUT - 673 011.

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7 JOHN THOMAS, S/O.KULANGARA IDIKKULA THOMAS, AGED 30 YEARS, RESIDING AT HOUSE NO.3/1575, SHEELA VIHAR, NEAR 6TH RLY.GATE, NADAKKAVU P.O., CALICUT -673 011.

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8 P.A.THOMAS,(DIED) AMENDED VIDE ORDER DATED 3/7/2013 IN I.A.NO.3331/2011), S/O.PUTHENPURAYIL MATHAI, AGED 45 YEARS, C/O.P.M.THOMAS, SUPERINTENDENT, VEPPUR ESTATE, HOUSE NO.8/505, NEAR MARTHOMA CHURCH, TAMARASSERY - 673 573. 9 ANNAMMA MATHEW, D/O.PUTHENPURAYIL MATHAI, AGED 32 YEARS, C/O.P.M.THOMAS, SUPERINTENDENT, VEPPUR ESTATE, HOUSE NO.8/505, NEAR MARTHOMA CHURCH, TAMARASSERY - 673 573.

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10 M.C.SARAMMA THOMAS, W/O.P.M.THOMAS, AGED 55 YEARS, C/O.P.M.THOMAS, SUPERINTENDENT, VEPPUR ESTATE HOUSE NO.8/505, NEAR MARTHOMA CHURCH, TAMARASSERY - 673 573.

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11 THOMAS B.ABRAHAM, S/O.M.O.THOMAS, AGED 35 YEARS, C/O.B.M.SHERIF, KWAJ MAHAL, HOUSE NO.33/2284, VOSLINKS ROAD, CHEVERAMBALAM, CALICUT - 17.

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12 ANNE JOSHUA, D/O.M.O.ALEXANDER, AGED 39 YEARS, RESIDING AT MANAMPURATH, HOUSE NO.4/281, ANJJILIPARA MURI, KANNAMANGALAM VILLAGE, THATTARAMPALAM P.O., MAVELIKARA - 690 103, ALAPPUZHA DISTRICT.

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13 SOSAMMA ALEXANDER (DIED), (AMMENDED VIDE ORDER DATED 3/7/2013 IN I.A.3331/2011), AGED 65 YEARS, W/O.M.O.ALEXANDER, RESIDING AT MANAMPURATH, HOUSE NO.4/281, ANJJILIPARA MURI, KANNAMANGALAM VILLAGE, THATTARAMPALAM P.O., MAVELIKARA - 690103, ALAPPUZHA DISTRICT.

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14 P.M.THOMAS, S/O.PUTHENPURAYIL MATHAI, AGED 64 YEARS,SUPERINTENDENT, VEPPUR ESTATE, HOUSE NO.8/505, NEAR MARTHOMA CHURCH, TAMARASSERY - 673 573, RESIDING AT HOUSE NO.8/505, VEPPUR ESTATE, TAMARACHERY - 673 573.

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15 JOLLY THOMAS,(DIED) (AMENDED VIDE ORDER DATED 21/1/2017 IN I.A.NO.239/2017), D/O.K.M.ABRAHAM, AGED 61 YEARS, RESIDING AT A/2-GANDHI NAGAR COLONY, WEST HILL, CALICUT - 673005.

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16 DR.BABU OOMMEN THOMAS, (AMMENDED VIDE ORDER DATED 12/11/2014 IN I.A.NO.1732 OF 2014), S/O.M.O.THOMAS, AGED 63 YEARS, RESIDING AT VILLA LAKE RETREAT, CHIRAKKAL, KANNUR - 670 011.

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17 P.A.JOSE, AGED 38 YEARS, S/O.PUTHENPURAYIL ABRAHAM, RESIDING AT HOUSE NO.8/505, C/O.P.M.THOMAS, SUPDT., VEPPUR ESTATE, TAMARACHERY, KOZHIKODE - 673 573.

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18 KUDILIL ISSAC CHACKO, S/O.CHACKO, AGED 62 YEARS, RESIDING AT CICILY SADAN, RAROTH AMSOM, DESOM, THAMARACHERI TALUK, PIN - 673 573.

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19 KUDILIL CICILY ISSAC, W/O.ISSAC, AGED 54 YEARS, RESIDING AT CICILY SADAN, RAROTH AMSOM, DESOM, THAMARACHERI TALUK, PIN- 673 573.

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20 PARAMMAL A.P.SHERIFF, S/O.A.P.AHAMED KOYA, AGED 40 YEARS, RAROTH VILLAGE, KEDAVOOR DESOM, THAMARACHERI TALUK, KOZHIKODE DISTRICT, PIN - 673 573.

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21 RAJENDRAN, S/O.KELOTHU RAGHAVA KURUP, AGED 52 YEARS, RESIDING AT KEDAVOOR DESOM, AMBAYATHODE, PIN - 673 573.

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22 MRS.JACINTH ABUBACKER, AGED 64 YEARS, W/O.DR.P.M.ABUBACKER, GENERAL THIMMAIAH ROAD BEHIND LIONS CLUB, MADIKERI - 572 201, KODAGU DISTRICT, SOUTH KARNATAKA.

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23 UDAYA BHANU PILLAI, S/O.MADHAVAN PILLAI, AGED 66 YEARS, CHENKILIL VEETIL, COMPANY SUPERVISOR, KADAVOOR MURI, KANNAMANGALAM VILLAGE, MAVELIKKARA, ALEPPEY DISTRICT, PIN - 690 101.

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OP(C) NO. 2552 OF 2019

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24 SANTHA BHANU PILLAI, D/O.LAKSHMIKUTTI AMMA, AGED 62 YEARS, CHEKIL VEETIL, KADAVOOR MURI, KANNAMANGALAM VILLAGE, MAVELIKKARA, ALLEPPEY DISTRICT, PIN - 690101.

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BY ADVS. SRI.P.B.KRISHNAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE SRI.MANU VYASAN PETER SMT.B.ANUSREE

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 24.07.2024, THE COURT ON

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THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C) NO. 2552 OF 2019

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JUDGMENT

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The Supplemental Defendants No.14 & 15 in O.S.No.189/1990 of the Sub Court, Kozhikode, have filed this Original Petition challenging Ext.P9 common order by which I.A.No.1260/2019 to restore I.A.No.1432/1990 and I.A.No. 1259/2019 to condone delay of 21 in seeking restoration filed by the plaintiffs were allowed.

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O.S.No.189/1990 is suit filed under S.92 of the Code of Civil Procedure (for short, CPC) for a decree directing framing of a Scheme with respect to the Society ‘All India Association for the Propagation of Homeopathy and Naturopathy’ and for recovery of possession of three items of property belonging to the Society.

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I.A.No.1432/1990 is an petition filed along with the suit by the plaintiffs seeking leave to institute the suit under S.92 CPC. It appears that I.A.No.1432/1990 was not considered before numbering the suit and it remained pending without

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OP(C) NO. 2552 OF 2019

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passing any order thereon for a long time.

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The Trial Court passed several orders in the suit, including several amendments to the plaint, without noticing the fact that the suit was instituted without obtaining leave under S.92 of the CPC as prayed for in I.A.No.1432/1990.

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According to the plaintiffs when the pendency of I.A.No.1432/1990 was noticed, they filed I.A.No.4067/2016 for amendment seeking deletion of the prayer for framing of Scheme and adding direction to the defendants to surrender peaceful possession of the scheduled properties. I.A.No.4067/2016 was allowed by the Trial Court as per Ext.P3 order dated 12.06.2017. Since, the nature and character of the suit changed and the suit came out of the purview of S.92 CPC by deletion of the prayer for framing scheme for the Society, I.A.No.1432/1990 seeking leave under S.92 CPC became unnecessary and accordingly, as per Ext.P4 order dated 12.06.2017, the Trial Court dismissed I.A.No.1432/1990 as not maintainable, holding that by virtue of the amendment to the plaint, the plaintiffs took the plaint out of the purview of S. 92 of CPC.

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Some of the defendants challenged Ext.P3 order allowing

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amendment, before this Court by filing Original Petition (Civil)No.2324/2017 and the same was allowed by Ext.P5 judgment dated 28.05.2019 setting aside Ext.P3 order.

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Consequent to the Ext.P5 judgment, the plaintiffs filed I.A.No.1260/2019 to revive and restore I.A.No.1432/1990 back to file and I.A.No.1259/2019 seeking to condone delay of 21 days in seeking restoration. These two petitions are allowed by the Trial Court as per Ext.P9 order, which is impugned in this Original Petition.

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I heard the Learned Senior Counsel for the petitioners Sri.M.R. Hariraj instructed by Adv.Sri. K.Rajagopal and the Learned Senior Counsel Sri. P.B. Krishnan instructed by Adv.Sri. Sabu George, for respondents 1 & 4.

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The learned Senior Counsel for the petitioners submitted that the impugned order is illegal and unsustainable since, at any rate, in order to challenge Ext.P3 order, the plaintiffs should have filed a Review Petition with a petition to condone delay for the same. Instead of that, what is filed is a Petition for revival and restoration and those petitions are not maintainable. He also contended that the basis for the calculation of the delay of 21 days is also not disclosed in the

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petition. There is long delay in filing the petition which remains unexplained. That apart, any petition in the suit could not be considered since the suit as such is not maintainable on account of the fact that the leave under S. 92 CPC is not obtained. According to him, if the plaintiffs want to prosecute the matter, they ought to have filed a fresh suit with a petition for leave in the matter.

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On the other hand, the learned Senior Counsel for respondents 1 & 4 submitted that the present situation happened consequent to Ext.P5 judgment passed by this Court setting aside Ext.P3 order allowing amendment. He pointed out that Ext.P4 order was passed dismissing I.A.No.1432/1990, consequent Ext.P3 allowing amendment. If Ext.P3 is set aside, the plaintiffs have every right to get I.A.No.1432/1990 restored for fresh consideration. He added that the delay in disposal of I.A.No.1432/1990 could not be attributed to the plaintiffs as both parties did not take notice of the pendency of the said petition for a long period. He pointed out that the suit was filed in the year 1990 and I.A.No.4067/2016 was filed only in the year 2016 when it was noticed that I.A.No.1432/1990 is pending without any order

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thereon.

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I.A.No.1432/1990 is admittedly filed by the plaintiffs along with the suit. It is clear from the records that without noticing the fact that the said I.A. is not allowed, the Trial Court proceeded with the suit passing several orders in the suit. Some of the orders were challenged before this Court and the same was also considered by this Court on merit. The contesting defendants also did not notice this fact and did not raise any objection in this regard.

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As rightly contended by the learned Senior Counsel for the petitioners, the suit should not have been numbered without allowing a leave petition under S. 92 CPC. But here is a case that the suit was numbered in the year 1990 without considering the leave petition and thereafter the proceedings in the suit continued. So the plaintiffs could not be blamed for not prosecuting I.A.No.1432/1990 for a long period. It is clear from Ext.P4 order dismissing I.A.No.1432/1990 that the said order happened to be passed consequent to Ext.P3 order allowing amendment sought by the plaintiffs changing the nature and character of the suit and taking the suit out of the purview of S.92 CPC. When Ext.P3 Order goes, naturally,

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I.A.No.1432/1990 requires reconsideration.

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But the procedure adopted by the plaintiffs for challenging Ext.P4 order is not legal. They should have filed a review petition to review Ext.P4 order for reconsideration of I.A.No.1432/1990. At the same time, I find that if they had filed a review petition, there are sufficient grounds for allowing the said review petition and for condoning the delay, since all these situations happened on account of the long pendency of I.A.No.1432/1990, passing of Ext.P3 order allowing the amendment, dismissing I.A.No.1432/1990 on the basis of Ext.P3 Order and setting aside Ext.P3 Order by Ext.P5 order. No prejudice would be caused to the petitioners if I.A.No.1432/1990 is reconsidered.

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In that view of the matter, even though I find that the procedure adopted by the plaintiffs is not legal, considering the long pendency of the suit and also the circumstances leading to the filing of I.A.Nos.1259/2019 and 1260/2019, I do not propose to interfere with the Ext.P9 order. Accordingly, this Original Petition is dismissed.

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In view of the fact that the suit and I.A.No.1432/1990 have been pending for a long period, I direct the Trial Court to

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dispose of I.A.No.1432/1990 within a period of three months from the date of receipt of a copy of this judgment.

Sd/-

M.A.ABDUL HAKHIM

JUDGE

Shgxx

OP(C) NO. 2552 OF 2019

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	APPENDIX OF OP(C) 2552/2019
PETITIONER EXHIBITS
EXHIBIT P1	A TRUE COPY OF THE PLAINT AS AMENDED BY VARIOUS ORDERS PRIOR TO 12/06/2017.
EXHIBIT P2	TRUE COPY OF THE I.A.NO.4067/2016 IN O.S.NO.189/1990.
EXHIBIT P3	A TRUE COPY OF THE ORDER DATED 12/06/2017 IN I.A.NO.4067/2016.
EXHIBIT P4	A TRUE COPY OF ORDER DATED 12/6/2017 IN I.A.1432/1990 IN O.S.189/1990.
EXHIBIT P5	TRUE COPY OF JUDGMENT DATED 28/5/2019 IN O.P.(C) 2324/2017.
EXHIBIT P6	A TRUE COPY OF I.A.1259/2019 IN O.S.NO.189/1990.
EXHIBIT P7	A TRUE COPY OF I.A.1260/2019 IN O.S.NO.189/1990.
EXHIBIT P8	A TRUE COPY OF THE OBJECTION DATED 16/9/2019.
EXHIBIT P9	A TRUE COPY OF THE ORDER DATED 20/9/2019 IN I.A.S 1259/2019 AND I.A.1260/2019 IN O.S.NO.189/1990.

P.a.Varghese, v. Mrs.Linda Oommen

Case brief

What is this about?

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P.a.Varghese, v. Mrs.Linda Oommen

Case brief

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