Annamma Thomas v. Rosamma @ Thankamma Cherian and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **FRIDAY, THE 28TH DAY OF JUNE 2013/7TH ASHADHA, 193** ## **RSA.No. 987 of 2012 ()** **----------------------------------AGAINST THE JUDGMENT IN AS 15/2009 of SUB COURT, CHERTHALA DATED 16-01-2012** **AGAINST THE JUDGMENT IN OS 484/2000 of ADDL.MUNSIFF COURT,CHERTHALA DATED 28-02-2007** **APPELLANT(S)/APPELLANT/16TH DEFENDANT:** **--------------------------------------------------------------------------** **ANNAMMA THOMAS AGED 57 YEARS W/O.THOMAS, MUNDACKAL HOUSE, MALAYIL LANE PALACHUVADU, KAKKANAD, PADAMUGAL KOCHI-682 030.** **BY ADV. SRI.ROY CHACKO** ## **RESPONDENT(S)/RESPONDENTS/PLAINTIFFS AND RESPONDENTS 1-15 AND 17 - 19.:** - **---------------------------------------------------------------------------------------------------------------------------** ## **1. ROSAMMA @THANKAMMA CHERIAN** **THALAKULATHIL, MUNJOLI P.O., PALA.- 686575** ## **2. THRESSIA @ PENNAMMA JOSE** **JOSE COTTAGE, CHERUVALLY P.O., MANIMALA.686543** ## **3. JOSEPH** **S/O.JOSEH, THEKKE VAZHATHARAYIL CHENNAM PALLIPPURAM MURI, PALLIPPURAM VILLAGE.688 541** **4. SISTER JUVANSHIA @ LILLIKUTTY D/O.JOSEPH, CMC, VIMAL JYOTHI CHUNGAM VELI, ALUVA-683 105.** **5. SOPHIYAMMA JACOB D/O.JACOB, MAPPILASSERIL, CHAMPAKULAM ALAPPUZHA.680 007** ## **6. JOSEPH** - **S/O.PALAKKATTU PAILY MAREENA BHAVANATHIL FROM PARASSERIL, CHENNAM PALLIPPURAM MURI, PALLIPPURAM VILLAGE.688 541** ## **7. KURIAN** ## **S/O.PALAKKATTU PAILY, PARASSERIL -DO-.688 541** **8. THRESSIA @ PENNAMMA JOSE, W/O.JOHN, JOHN VILAYIL FROM PARASSERIL, -DO-. DELETED** ## **9. PAUL @ CHACHAPPAN, -DO-.** **DELETED** ## **10. CHERIAN @ BENNY, - DO-** **DELETED** **11. THRESSIA @ JANCY THONDAMPALLY, AYARKUNNAM, KOTTAYAM. 686 001** **12. MARY LINCY KISHORE @ LINCY ANUGRAHA, KADAPPAKKADA P.O., KOLLAM. 691 001 DELETED** **13. MARIYAMMA W/O.MATHEW, VAZHATHARA, CHENNAM PALLIPPURAM MURI PALLIPPURAM VILLAGE (DIED).** **14. MARY PHILIP D/O.MATHEW, VALIYAMALIL, MANNACKANADU P.O. PALA. 686575 DELETED** **15. JANSI KURIYAN D/O.MATHEW, KUZHIYADIYIL, PAYIPPADU P.O. CHANGANASSERRY. 686 101** ## **16. MARYAM (MINOR),** **-DO-** ## **17. THRESSIA (MINOR),** **-DO-.** ## **18. THRESSIAMMA MATHEW** **D/O.MATHEW, VAZHATHARAYIL, CHENNAM PALLIPPURAM MURI, PALLIPPURAM VILLAGE. 688 541 DELETED** ## **19. ABRAHAM MATHEW, S/O.MATHEW - DO-.** ## **20. SHYNI MATHEW** **S/O.MATHEW, MANVATTOM, PUTHANTHARA P.O. 691 588 DELETED** **R1 BY ADV. SRI.J.OM PRAKASH** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28-06-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** das ## **N.K.BALAKRISHNAN, J.** ========================== **R.S.A. No. 987 of 2012** =================================== **Dated this the 28[th] day of June, 2013** ## **JUDGMENT** 16[th] defendant in a suit for declaration and consequential injunction is the appellant. This appellant was declared ex parte by the trial court. Some of the other defendants contested the suit. Including the legal heirs of the deceased 11[th] defendant, there were altogether 19 defendants. Defendants 14 and 15 were minors and they were represented by the 13[th] defendant. The Plaintiff and the contesting defendants adduced evidence before the trial court. On behalf of the plaintiff PW1 was examined and Exts.A1 to A3 were marked. On behalf of the contesting defendants, one of the defendants was examined as DW1 and Exts.B1 to B7 were marked. The commissioner's report and plan were marked as Exts.C1 and C1(a). The trial court granted a decree for declaration that the gift deed No.4517 (Ext.B3) is void and not binding on the plaintiffs. A consequential prohibitory injunction was granted restraining R.S.A.No.987 /2012 2 defendants 1 to 3 and persons claiming under them from inducting strangers into the plaint schedule property and from committing any acts of waste therein. A preliminary decree was passed with respect to the share of the plaintiff and defendants 4 and 5, that they are entitled to get ¼ share each in the plaint schedule property. The other defendants did not challenge the decree. The 16[th] defendant who is the appellant herein filed an appeal before the Sub Court with a petition to condone the delay of 690 days. 2. It was contended by the appellant that she came to know about this case from her brother Abraham Mathew and on enquiry it was revealed that the suit was decreed ex parte. It appears from the contentions raised by the appellant that she came to know on 22.7.2008 that the suit was decreed ex-parte. The suit was hotly contested by her brother. It was disposed of on 28.2.2007. A detailed judgment was passed by the learned Munsiff. It is stated that she (the appellant) applied for certified copy of the decree and judgment on 15.10.2008. There is an unexpected delay of 79 days for applying to the court for getting certified copy. In other words, it was not stated in the petition, R.S.A.No.987 /2012 3 why even after coming to know on 22.7.2008, she did not take steps to get the certified copy of the judgment and decree. It was contended by the appellant that she was suffering from Chicken Gunia and so she could not prefer the appeal within the time prescribed. That application was strongly opposed by the 6[th] respondent in the appeal contending that there are no sufficient grounds to allow the application and that the averments made in the application are untrue. It was also contended that there was proper notice and the appellant was well aware of the proceedings pending before the court and that after the suit was decreed against her brother Abraham Mathew and others she was set up by those defeated party for filing an appeal raising untenable contentions that she was laid up due to Chicken Gunia. Except the averment in the affidavit filed along with the petition, there is absolutely no evidence to show she was suffering from any illness which disabled her from attending the court. A detailed counter affidavit was filed denying the allegations made in the affidavit filed by the appellant. 3. Relying upon a decision of the Hon'ble Supreme Court, it is argued by the learned counsel for the appellant that, R.S.A.No.987 /2012 4 when cause of substantial justice is pitted against technical considerations, the cause of substantial justice should be preferred to and so even if it is accepted that each days delay was not properly explained by the appellant, if the court finds that there would be denial of justice if the appeal is not entertained on merit, then the court can exercise the discretion in favour of the appellant. 4. Even when no sufficient cause is made out by the petitioner, the court has got discretion to set aside the ex parte decree. Relying on the judgment rendered by the Division Bench of this court in **Plantation Corporation of Kerala Ltd. v. Hussain (1998 (1) KLT 1008)** it is argued on behalf of the respondents that a suit dismissed for default can be restored or an ex parte decree can be set aside only on the petitioner making out sufficient cause. The learned counsel for the respondents would submit that it is not a case that there were minor latches or negligence on her part so as to condone the delay in filing the appeal. It is important to note that she was declared ex parte long prior to 28.2.2007, the date of the decree and judgment. It is pointed out that the appellant's brother Abraham Mathew was R.S.A.No.987 /2012 5 hotly contesting the case and so it can never be believed that the appellant was totally unaware of the pendency of the suit. 5. The appellant contends that the suit summons was issued in her address at Kottayam whereas she was residing at Padamugal in Ernakulam and so the suit summons was not served on her. No doubt, there was no direct service of summons on the appellant. The respondents would contend that the appellant was residing in the address shown at Kottayam and that was why the summons was sent in that address. Though, according to the appellant, she was staying at Padamugal in Ernakulam, there is absolutely no evidence on that point. The appellant who wanted to explain the delay in filing the appeal did not enter the witness box to give evidence explaining the circumstances under which the delay was caused in filing the appeal. If as a matter of fact she came to know of the decree only on 22.7.2008, that was a matter to be spoken to by the appellant by giving evidence on that point. She did not enter the box. Similarly if she was actually suffering from any illness which disabled her from filing the appeal for 567 days that also is something to be explained by the appellant. No evidence was R.S.A.No.987 /2012 6 adduced on that point also. Though she says that she was having such serious illness no document was produced to prove that aspect. The learned counsel for the respondents would submit that there is another delay of 79 days which remained totally unexplained. If the appellant came to know of passing of the decree on 22.7.2008, it eludes comprehension why the application for certified copies of the decree and judgment was filed only on 15.10.2008. No reason was stated even in the affidavit. Regarding that aspect also there is no evidence. 6. The learned counsel for the contesting respondents would submit that the appellant was well aware of the pendency of the case and in fact her brother was hotly contesting the suit and that the appeal before the appellate court with a petition to condone the delay was filed only at the instance of her defeated brother. When such a specific case was advanced by the respondents in the counter statement filed, challenging the allegations made in the application for condonation of delay, it was incumbent on the appellant to have produced some evidence or she should have at least mounted the witness box to give evidence regarding the same. That was also not done. R.S.A.No.987 /2012 7 7. The learned counsel for the respondents would submit that since the summons could not be directly served on the appellant a publication was effected in 'KeralaKoumudi'-a malayalam daily. The appellant contends that, that paper has no wide circulation. However, in view of the fact that her brother Abraham Mathew, who was/is on cordial terms with her hotly contested the suit the theory put forward by her that she was unaware of the pendency of the case cannot be believed at all. When there is absolutely no iota of evidence to show that she was in fact, staying at Padamugal in Ernakulam, and not in the address at Kottayam and when no evidence was adduced by her to show that she came to know of passing of the decree only on 22.7.2008, it has to be said that there is no explanation at all for her non-attendance before court. In other words, she has miserably failed in proving sufficient cause for not appearing in court at the time of trial. 8. The learned counsel for the respondents has also pointed out that though a counter claim was filed and that counter claim was decreed against including the appellant herein no appeal has been filed against that counter claim and so R.S.A.No.987 /2012 8 the decree in that counter claim operates as res judicata and on that ground also this appeal has to be dismissed. 9. The learned counsel for the respondents, in order to buttress his submission that the appellant was actually set up by her defeated brother points out that admittedly the plaint schedule property originally belonged to one Paily the father of the plaintiff's mother who is obtained as per a partition deed of 1110 ME and on his death, the right over the property devolved upon his wife and children and they were in possession of the same. One Mathew, son of Kurian had earlier filed a suit for redemption of mortgage as O.S. 353 of 1967 contending that he had purchased Jenmam right but that suit was dismissed. That was not appealed against, it is contended. The appellant herein is stated to be one of the daughters of Mathew mentioned earlier. The suit was filed contending that the plaintiffs got reliable information that defendants 2 to 4 in the suit created document with respect to the plaint schedule property and those documents are not binding on the plaintiffs. The copy of the decree in O.S. 353/67 was produced and marked as Ext.A2. R.S.A.No.987 /2012 9 10. It is further submitted by the learned counsel for the respondent that the 16[th] defendant and others were impleaded in the suit only because of the fact that they were the LRs of mortgagor and also because they were parties to the documents subsequently created with intent to lay claim over the property. The person who actually claimed right over the property did not challenge the decree passed in O.S.No.484/2000. As has been stated earlier it is clear that this appellant who is the 16[th] defendant was set up by her brother, who contested and lost the suit. I find no merit in the submission made by the learned counsel for the appellant. No substantial question of law arises in this case. This appeal is hence dismissed. Sd/- ## **N.K.BALAKRISHNAN, JUDGE** das/jjj // True copy // PA to Judge