K. John @ Ashok v. John Joseph and others (O.P.(C) Nos.1225 & 1226/2019)

O.P.(C)Nos.1225 & 1226/2019 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **WEDNESDAY, THE 23RD DAY OF OCTOBER 2019 / 1ST KARTHIKA, 1941** ## **OP(C).No.1225 OF 2019** **AGAINST THE ORDER IN CMA NO.41/2018 OF THE DISTRICT COURT, PATHANAMTHITTA PREFERRED AGAINST THE ORDER IN IA NO.386/2018 IN OS NO.93/2013 OF SUB COURT PATHANAMTHITTA.** ## **PETITIONER/S:** |**1**||**K.JOHN @ ASHOK,**| |---|---|---| |||**AGED 68 YEARS**| |||**S/O. LATE K. G. JOSEPH, MAMUTTIL ESTATE, OOTTUPARA**| |||**P. O., KONNI, PIN - 689 691, PATHANAMTHITTA, NOW**| |||**RESIDING AT 9-B2 CONDOR DAFFODILS, KURAVANKONAM,**| |||**KOWDIAR P. O., THIRUVANANTHAPURAM - 695003**| |**2**||**USHA GICE GEORGE,**| |||**AGED 71 YEARS**| |||**W/O. GEORGE, VIJAYAPURAM ESTATE, PATTAZHI,**| |||**EZHAMKULAM, ADOOR, NOW RESIDING AT - 2179, RODRICK**| |||**ROAD, MARKHAM ONL6C 1S3, CANADA**| |**3**||**SUSAN ABRAHAM,**| |||**AGED 63 YEARS**| |||**W/O. ABRAHAM GEORGE, KADAMPLAVIL HOUSE, THUPAMON,**| |||**ADOOR TALUK, NOW RESIDING AT - 433 WLNUT STREET,**| |||**NUTELY, NJ-07110, U.S.A.**| |||**BY ADV.BALAKRISHNA IYER S.V.(SR)**| |||**BY ADV. SRI.LATHEESH SEBASTIAN**| |**DENT/S**|**:**|| |**1**||**JOHN JOSEPH**| |||**AGED 74 YEARS**| |||**S/O. JOSEPH, RESIDING AT VADAKKADATHU HOUSE,**| |||**KALLELY P. O., PATHANAMTHITTA, PIN - 689691, NOW**| |||**RESIDING AT VADAKKEDATHU HOUSE, VADAVATHOOR P. O.,**| |||**KALATHIPADI, NATTASSERI MURI, VIJAYAPURAM VILLAGE,**| |||**KOTTAYAM DISTRICT - 686 010**| ## **RESPONDENT/S:** O.P.(C)Nos.1225 & 1226/2019 2 **2 MARIAMMA GEORGE AGED 70 YEARS W/O. JOSEPH GEORGE, VADAKKADATHU HOUSE, KALLELY P. O., ARUVAPPULAM VILLAGE, KONNY TALUK, PATHANAMTHITTA, PIN - 689 691 3 MEENU NINAN AGED 38 YEARS W/O. NINAN, VADAKKADATHU HOUSE, KALLELY P. O., ARUVAPPULAM VILLAGE, KONNY TALUK, PATHANAMTHITTA, PIN - 689 691 4 SUNU JOJO AGED 37 YEARS W/O. JOJO, VADAKKADATHU HOUSE, KALLELY P. O., ARUVAPPULAM VILLAGE, KONNY TALUK, PATHANAMTHITTA, PIN - 689 691 5 SANA GEORGE AGED 38 YEARS W/O. ADV. SANTHOSH MATHEW, VADAKKADATHU HOUSE, KALLELY P. O., ARUVAPPULAM VILLAGE, KONNY TALUK, PATHANAMTHITTA, PIN - 689 691 6 BINDU JOSEPH AGED 38 YEARS D/O. JOSEPH GEORGE, VADAKKADATHU HOUSE, KALLELY P. O., ARUVAPPULAM VILLAGE, KONNY TALUK, PATHANAMTHITTA, PIN - 689 691 R1 BY ADV. SRI.SANTHOSH MATHEW R1-6 BY ADV. SRI.ARUN THOMAS R1-6 BY ADV. SRI.JENNIS STEPHEN R1 BY ADV. SRI.VIJAY V. PAUL R1 BY ADV. SMT.KARTHIKA MARIA R1 BY ADV. SRI.ANIL SEBASTIAN PULICKEL R1 BY ADV. SMT.DIVYA SARA GEORGE R1 BY ADV. SMT.JAISY ELZA JOE R2-6 BY ADV. SRI.GEORGE POONTHOTTAM (SR.)** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 04-10-2019, ALONG WITH OP(C).1226/2019, THE COURT ON 23/10/2019 DELIVERED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **WEDNESDAY, THE 23RD DAY OF OCTOBER 2019 / 1ST KARTHIKA, 1941** ## **OP(C).No.1226 OF 2019** **AGAINST THE ORDER IN CMA NO.42/2018 OF THE DISTRICT COURT, PATHANAMTHITTA PREFERRED AGAINST THE ORDER IN IA NO.387/2018 IN OS 34/2016 OF SUB COURT, PATHANAMTHITTA** ## **PETITIONER/S:** |**1**|**K.JOHN @ ASHOK**| |---|---| ||**AGED 68 YEARS**| ||**S/O.LATE K.G.JOSEPH, MAMUTTIL ESTATE, OOTTUPARA.P.O.,**| ||**KONNI, PIN-689691, PATHANAMTHITTA, NOW RESIDING AT 9-**| ||**B2 CONDOR DAFFODILS, KURAVANKONAM, KOWDIAR.P.O.,**| ||**THIRUVANANTHAPURAM-695001.**| |**2**|**USHA GICE GEORGE,**| ||**AGED 71 YEARS**| ||**W/O.GEORGE, VIJAYAPURAM ESTATE, PATTAZHI, EZHAMKULAM,**| ||**ADOOR, NOW RESIDING AT - 2179, RODRICK RD,. MARKHAM**| ||**ONL6C IS3, CANADA.**| |**3**|**SUSUAN ABRAHAM**| ||**AGED 63 YEARS**| ||**W/O.ABRAHAM GEORGE, KADAMPLAVIL HOUSE, THUPAMON,**| ||**ADOOR TALUK, NOW RESIDING AT - 433 WALNUT STREET,**| ||**NUTELY, NJ-07110, U.S.A.**| **(PETITIONERS 2 AND 3 ARE REPRESENTED BY THEIR POWER OF ATTORNEY HOLDER K.JOHN @ ASHOK, PETITIONER NO.1 HEREIN)** **ADV.BALAKRISHNA IYER S.V.(SR.)** **BY ADV. SRI.LATHEESH SEBASTIAN** ## **RESPONDENT/S:** |**1**|**JOHN JOSEPH,**| |---|---| ||**S/O.JOSEPH, AGED 74, RESIDING AT VADAKKADATHU HOUSE,**| ||**KALLELY.P.O., PATHANAMTHITTA, PIN-689691, NOW**| ||**RESIDING AT VADAKKEDATHU HOUSE, VADAVATHOOR.P.O.,**| ||**KALATHIPADI, NATTASSERI MURI, VIJAYAPURAM VILLAGE,**| ||**KOTTAYAM DISTRICT-686010.**| O.P.(C)Nos.1225 & 1226/2019 4 - **2 MARIAMMA GEORGE, W/O.JOSEPH GEORGE, AGED 70, VADAKKADATHU HOUSE, KALLELY.P.O., ARUVAPPULAM VILLAGE, KONNY TALUK, PATHANAMTHITTA, PIN-689691** - **3 MEENU NINAN, W/O.NINAN, AGED 38, VADAKKADATHU HOUSE,** - **KALLELY.P.O., ARUVAPPULAM VILLAGE, KONNY TALUK, PATHANAMTHITTA, PIN-689691** - **4 SUNU JOJO, W/O.JOJO, AGED 37, VADAKKADATHU HOUSE, KALLELY.P.O., ARUVAPPULAM VILLAGE, KONNY TALUK, PATHANAMTHITTA, PIN-689691** - **5 SANA GEORGE,** - **W/O.ADV.SANTHOSH MATHEW, AGED 38, VADAKKADATHU HOUSE, KALLELY.P.O., ARUVAPPULAM VILLAGE, KONNY TALUK, PATHANAMTHITTA, PIN-689691** - **6 K.GEORGE, S/O.LATE K.G.JOSEPH, AGED 69, MAMOOTTIL ESTATE, OOTTUPARA.P.O., ARUVAPPURAM VILLAGE, KONNI TALUK, PATHANAMTHITTA, PIN-689691.** - **7 BINDU JOSEPH,** **D/O.JOSEPH GEORGE, AGED 38, VADAKKADATHU HOUSE, KALLELY.P.O., ARUVAPPULAM VILLAGE, KONNY TALUK, PATHANAMTHITTA, PIN-689691.** - **8 PAPPY PONNACHAN,** **S/O.LATE VARGHESE PAPPY, AGED 65, THOTTUMKARA MURIPPEL HOUSE, OPP.ST.GEORGE MALANKARA CATHOLIC CHURCH, KALLELY-KULATHUMON ROAD, KALLELY.P.O., ARUVAPPULAM VILLAGE, KONNY TALUK, PATHANAMTHITTA, PIN-689691.** - **9 PAPPY BABY,** **S/O.LATE VARGHESE PAPPY, AGED 73, THOTTUMKARA MURIPPEL HOUSE, OPP.ST.GEORGE MALANKARA CATHOLIC CHURCH, KALLELY-KULATHUMON ROAD, KALLELY.P.O., ARUVAPPULAM VILLAGE, KONNY TALUK, PATHANAMTHITTA, PIN-689691.** - **10 MATHEW THOMAS,** **S/O.THOMAS, AGED 40, KADUVINAL HOUSE, KALLELY.P.O., ARUVAPPULAM VILLAGE, KONNY TALUK, PATHANAMTHITTA, PIN-689691.** O.P.(C)Nos.1225 & 1226/2019 5 **R1 BY ADV. SRI.SANTHOSH MATHEW R1-5, R7 BY ADV. SRI.ARUN THOMAS R1-5, R7 BY ADV. SRI.JENNIS STEPHEN R1 BY ADV. SRI.VIJAY V. PAUL R1 BY ADV. SMT.KARTHIKA MARIA R1 BY ADV. SRI.ANIL SEBASTIAN PULICKEL R1 BY ADV. SMT.DIVYA SARA GEORGE R1 BY ADV. SMT.JAISY ELZA JOE R2-5, R7 BY ADV. SRI.GEORGE POONTHOTTAM (SR.)** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 04-10-2019, ALONG WITH OP(C).1225/2019, THE COURT ON 23/10/2019 DELIVERED THE FOLLOWING:** ## **JUDGMENT** ## **[ OP(C).1225/2019, OP(C).1226/2019 ]** Plaintiffs in O.S.No.93/2013 and O.S.No.34/2016, both pending before the Sub Court, Pathanamthitta are the petitioners in the above original petitions. Parties are referred hereinafter as the petitioners and the respondents, as per their status in the present case. 2. Petitioners filed O.S.No.84/2003 before the Munsiff Court Pathanamthitta seeking declaration of title of the plaint schedule property and for an injunction against tresspass. It was based on an allegation that the defendants had attempted to trespass into their property. An interim injunction was granted. Later, the suit was dismissed for default. It was restored on payment of costs. After the dismissal of the suit, O.S.No.93/2013 was filed by the petitioners before the Sub Court, Pathanamthitta alleging that during the interregnum, defendants trespassed into the plaint schedule property and had cut and removed valuable trees. They sought damages from the respondents. 3. Pending the above proceedings, O.S.No.84/2003 was transferred to the Sub Court, Pathanamthitta for joint trial and disposal. It was renumbered as O.S.No.34/2016. Both suits were listed for trial and posted to 4/6/2018 . On 31/5/2018, the listed day, when the case was taken up, petitioners filed I.A.No.326/2018 seeking adjournment by ten days on medical ground. The above application was dismissed, but the case was O.P.(C)Nos.1225 & 1226/2019 7 posted to 11/6/2018. Thereafter, I. A. No. 341/2018 was filed on 6/6/2018 with a request to adjourn the case for one month on medical ground. It was taken up and dismissed on 11/6/2018. Since the petitioners were not present in both the proceedings, On that day, suits were dismissed for default. Subsequently, IA No. 387/2018 in O.S No.34/2016 and I.A.No.386/2018 in OS No. 93/2013, were filed with a prayer to set aside the dismissal order and to restore the suits to file. The court below, by a common order dismissed both the applications. They were challenged in CMA Nos.42/2018 and CMA 41/2018. The Lower Appellate Court by the impugned common judgment dismissed both the appeals. That judgment is assailed in the present original petitions. 4. Heard the learned senior counsel for the petitioners and the learned senior counsel for the contesting respondents in extenso. Examined the records. 5. The common grounds set up in IA Nos. 386/2018 and 387//2018 are as follows; the case stood posted to 11/6/2018. When it was taken up on the previous posting day, ie on 31/5/2018, the counsel for the plaintiffs had informed the trial court that the first petitioner was looking after the cases on behalf of the remaining petitioners and he was advised medical rest. It was also submitted that CMA No.5/2017 arising from the above suit was heard by the appellate court and was posted for orders to 16/6/2018. On this ground, adjournment for two weeks was sought. The case was taken up on 11/6/2018 on which day both the suits were O.P.(C)Nos.1225 & 1226/2019 8 dismissed for default on the ground that the first petitioner in person was absent. However, parties were represented. Suits were dismissed holding that evidence was not adduced, even though ample opportunities were given to the petitioners to adduce evidence. It was stated in the applications for restoration of the suits that the first petitioner was contesting the suit on behalf of the second and third petitioners, who were residing abroad and that all the petitioners were senior citizens. In the meanwhile, the first petitioner had undergone an urgent medical checkup on 4/6/2018 and he was advised medical rest for one month. Hence, IAs were filed in both the suits in advance for an adjournment to ensure that the inconvenience was not caused to the court . In continuation of the earlier medical checkup, on 11/6/2018 he was treated at Jubilee Memorial Hospital, Thiruvananthapuram and advised rest for two weeks. Medical records and connected documents were produced along with the interlocutory applications to substantiate the contentions. Thereafter, I.A.No.342/2018 was filed in OS No.34/2016 for amendment of the plaint pending the proceedings. It was sought on the valid ground and adjournment was not intended to protract the proceedings, it was claimed. 6. The respondents appeared and vehemently opposed the applications. It was alleged that the petitioners have no intention to take up the matter for trial. It was contended that they had no triable case and wanted to avoid final hearing . It was also stated that on earlier two O.P.(C)Nos.1225 & 1226/2019 9 occasions, the suits were dismissed for default and cost was ordered to be paid for allowing restoration applications. 7. To substantiate the medical ground, the first petitioner had relied on Ext.P1. It indicated that the first petitioner had atypical chest pain from 13/3/1995 onwards. Ext.P1 indicated that he had consulted the Cardiology Department on 11/6/2018. Medical records of Jublee Memorial hospital showed that he was suffering from back pain, and was seen by the Orthopedician. He was advised rest for 20 days from 11/6/2018. Hence, he could not be present on 13/6/2018. 8. The court below, after referring to the above documents, held that the dates mentioned in both the medical certificates and the facts mentioned therein were contradictory to each other. The court also noticed that the first petitioner was present before the Additional District Court on 16/6/2018 and on 18/6/2018. On the basis of the above facts, the court below disbelieved the medical certificates. Lower court on an evaluation of the materials on record, also noticed that the petitioners herein had no substantial issues for consideration. It was also noticed by the court that the settled legal position was that the courts should be liberal in restoring the suit dismissed for default, unless there were contra materials. Trial court held that there was gross negligence on the part of the parties concerned and dismissed the interlocutory applications. 9. The lower appellate court while considering both the CMAs, accepted the contention of the appellants that if there are substantial O.P.(C)Nos.1225 & 1226/2019 10 issues involved, the court below shall be liberal in restoring the suits. However, in case of gross negligence, such a liberal view was not liable to be taken . The only question that the lower appellate considered was whether the materials on record indicated that there was gross negligence on the part of the petitioners. The court further accepted the contention of the respondents that in the light of the report of the Taluk Surveyor and the commissioner, the plaint schedule property was now part of the public road. It also agreed that after the dismissal of the interlocutory applications for setting aside the commission report, the petitioners might have lost interest in the litigation. The court also believed the contention of the respondents that the petitioners were only interested in protracting the litigation, since they were aware of the fate of the suit. 10. According to the lower appellate court, Exts.A1 to A3 showed that he was not treated as in patient in the hospital on 11/6/2018. Consequently, the court doubted the genuineness of the claim that he was advised medical rest. On the other hand, Exts.B1 and B2 showed that on 16/6/2018 and 18/6/2018, the first petitioner had appeared before the Additional District Court in CMA No.51/2017 and objected to the withdrawal of CMA No. 51/2017. On the basis of the evaluation of Exts.A1 to A3 and Exts.B1 and B2, the appellate court held that sufficient reason for restoring the suits was not established and consequently appeals were dismissed confirming the order of the trial O.P.(C)Nos.1225 & 1226/2019 11 court. 11. Facts disclose that O.S.No.84/2003 was initially listed to 5/2/2007. The suit was listed at the instance of the plaintiffs. Again it was listed on March 2007. The petitioners applied for removal of it from the list. On the next occasion when the case posted to 16/7/2007, there was no representation on the side of the petitioners and consequently the suit was dismissed. It was thereafter restored. After a long lapse of time, the case was again listed for trial to 12/7/2012. An interlocutory application was filed to remove the case from the list on the ground that the first petitioner was medically not well. It was also stated that he was undergoing treatment at Sree Chithra Institute, Thiruvananthapuram. That application was dismissed and the suit was also dismissed for default. Application filed for restoration of the suit was allowed on payment of costs of Rs.5,000/-. The court below noted that this was the third time that the case was listed and dismissed for default. It was thereafter the suits were ordered to be jointly tried. Pursuant to the order of this court in O.P.(C) No.896/2016 for early disposal, both suits were listed for trial in 2018. 12. Vehemently challenging the concurrent findings of both the courts, learned senior counsel for the petitioners contended that both the courts substantially went wrong in appreciating the entire facts in its correct perspective. It was contended that the courts were carried away by the presumptions and surmises and reached wrong conclusions. It O.P.(C)Nos.1225 & 1226/2019 12 was contended by the learned senior counsel that the petitioners had considerable stake in the entire proceedings and had been prosecuting the proceedings since 2003. In the light of the substantial stake involved, it could not normally be expected that the petitioners would willfully remain absent and invite adverse orders. It was contended that Exts.A1 to A3 prima facie indicated that the first petitioner, who was supposed to be examined, was medically unfit and was unable to face a lengthy trial. Instead of appreciating the documents in that perspective, the court below approached the entire issues with circumspection and doubted the genuineness of the documents. It was contended that nobody has a case that the first petitioner was not aged and was not undergoing treatment since long. It was also contended that the court below was carried away by the fact that the first petitioner was present in another court on those two days, as evidenced by Exts.B1 and B2. It was submitted that the first petitioner never contended that he was completely bed ridden or that he was directed to take bed rest. It was further contended that being party in person, he was expected to be present before the District court when CMAs were taken up since the appeals were sought to be withdrawn. 13. Learned senior counsel extensively took me through the material pleadings and contention of the parties to argue that the petitioners had a substantial case and the case involved substantial stake. The learned senior counsel contended that the courts must be O.P.(C)Nos.1225 & 1226/2019 13 liberal in construing the applications under Order 9 Rule 13 CPC, if there is any substantial issue to be considered, even if there is some laches on the part of the parties, it can be compensated in terms of money as held by the Supreme court in _**G.P.Srivastava v. R.K.Ratzada and others (AIR 2000 Supreme Court 1221)**_ , _**Robin Thapa v. Rohit Dora (2019 (3) KLT 525(SC)) Thomas P.Abraham v. Aleyamma Abraham (2003 (3) KLT 864)**_ and _**Sajitha Kumari v. Prajith (2017 (1) KLT 248),**_ it was contended. 14. Opposing the contentions of the petitioners, learned senior counsel for the respondents contended that the entire facts disclosed that both the suits were frivolous and that they were filed only to spite the respondents. It was stated that, the petitioners had absolutely no right over the property and the commissioner's report sufficiently indicated that the property was not even available to satisfy any claim of the petitioners. It was contended that, the court below while vacating the interim injunction granted earlier, found that the petitioners were using the process of court for oppression of opponents. Learned counsel extensively took me through the earlier proceedings to marshal the contention that the petitioners have been repeatedly and consistently protracting the proceedings. It was contended that though the suits were initiated in the year 2003, till now it could not be tried and brought to its logical conclusion on merits. It was also contended that at every stage O.P.(C)Nos.1225 & 1226/2019 14 spokes were introduced by the petitioners to avoid a full fledged trial of the proceedings, and several collateral proceedings were initiated by the petitioners. It was further contended that O.P.(C)No.896/2016 filed by the petitioners was disposed of on 3/8/2016 by this court with a direction to the court below to dispose of the suits within three months. It was contended that more than 30 interlocutory applications were filed thereafter. The learned senior counsel concluded by saying that only intention of the petitioners was to keep the suit alive. It was also contended that Exts.A1 to A3 did not support the grounds set up by the petitioners, where as Exts.B1 to B3 belied the claim of the petitioners. It was further contended that the above two documents evidence that the period during which the first petitioner claimed himself to be under medical treatment, he had travelled all the way from Thiruvananthapuram to Pattanamthitta, to attend a formal posting of the CMA ; still he avoided the trial court. 15.There seems to be some basis in the contention of the learned senior counsel for the petitioners that they had substantial stake in O.S.No.83/2003, which was filed for declaration of title of the plaint schedule property in favour of the petitioners and for possession of 22 cents of land. OS No. 83/2013 was filed on an allegation that the defendants have trespassed into the plaint schedule property and cut and removed their valuable trees. Defendants' case was that the property was sold to the predecessor of the plaintiffs for the purpose of O.P.(C)Nos.1225 & 1226/2019 15 laying the road and infact the road has now been laid. 16. The judgment of the lower appellate court itself indicated that, it has held that from the nature of the issues involved, the disputed question cannot be decided without full fledged trial. The appellate court also held that some substantial issues are to be answered by the court below and thereby concluded that the matter needed adjudication. In the nature of the above contentions, it is clear that the plaintiffs have some substantial stake and the contention in the suits. Hence, in the ordinary course it is normal to presume that the petitioners would not have voluntarily and knowingly taken the chance of willfully abstaining from the proceedings and invited an adverse order, which would have substantially affected them. 17. The crucial question that now arises is whether there is any reasonable justification in the conduct of the petitioners in remaining absent on the relevant day and whether there is any bona fides in the applications filed for restoration of the suits. There is no dispute that the case was listed to 4/6/2018 for trial. In the meanwhile, petitioners filed I.A.No.301/2018 in OS No.34/2016 on 24/5/2018 for advancing both the suits. It was stated that though their earlier amendment application was allowed, the court did not direct the defendant to file additional written statement , if any. The court did not also frame issues. It was also stated that the balance court fee payable was also not paid. Pursuant to the interlocutory application, the court below framed additional issues O.P.(C)Nos.1225 & 1226/2019 16 and posted the case for payment of balance court fee and for carrying out amendment. Consequent, to the above application, IA s were taken up, points discussed and orders were passed. It shows that the petitioners were justified in moving the court in advance and in facilitating the further progress of the suit. 18. On 31/5/2018, IA No. 326/2018 was filed in OS No.34/2016. It was filed seeking ten days time on the ground of a proposed medical checkup. The court below without going into the merits, dismissed the application on the same day. However, it is true that the court gave time thereafter. In I.A No.341/2018, petitioners sought adjournment for one month, again on medical grounds. Medical certificates were produced. Along with the above applications, IAs were taken up on 13/6/2018. Counsel for the petitioners submitted that the first petitioner was unable to attend the court due to health reason and records which were sent to the lower appellate court for disposal of CMA had not been returned by that court. However, the suits were dismissed for default. It was in this back ground that IA Nos. 386/2018 and 387/2018 were filed. 19. IA No.326/2018 evidenced that the first petitioner had undergone urgent medical check up at Shree Chithra Institute on 4/6/2018 and was advised one month rest. In IA No.3411/2016 also it was stated that he had a cardiac ailment from 1995 onwards and had been undergoing treatment. He has a case that pursuant to A1 he was referred to Jubilee Memorial Hospital with complaint of back pain. O.P.(C)Nos.1225 & 1226/2019 17 Evidently, he had sought adjournment on medical reasons. Inspite of the above, the suit was dismissed. 20. In IA Nos.386/2018 and 387/2018, which are the applications for restoration of suits dismissed for default, it was stated that he had undergone urgent medical check up on 4/6/2018 and was advised one month rest. This was the same reason as disclosed in IA Nos. 326/2018 and 341/2018. It was stated in the affidavit that as a continuation of the medical check up at Sree Chithra Institute, Thiruvananthapuram, he had undergone medical check up at Jublee Memorial Hospital with complaint of back pain and was advised to take rest. Three certificates issued by the hospitals, generally referring to these facts, were also produced along with the interlocutory applications. 21. Ext.A1 was issued on 16/11/2006 from Sree Chithra Institute. Ext.A1 shows that the first petitioner was a registered patient of that institution with atypical chest pain from 13/3/1996 onwards. It was stated that he requires regular medical check up. It was issued by the Assistant Professor of the Cardiology Department of that institution. Ext.A2 is the treatment certificate issued by the same institution dated 4/6/2018 which discloses that the first petitioner had attended Cardiology OPD on 4/6/2018. He was diagnosed with HT, DM, cervical spondylosis and Dyslipedemia. He was directed to continue medical treatment. Ext.A3 is the certificate issued by the Orthopedic Surgeon of Jubilee Memorial Hospital indicating that he was seen by the doctor on 11/6/2018 and O.P.(C)Nos.1225 & 1226/2019 18 was advised 20 days rest from 11/6/2018. 22. The above facts indicate that even before the matter was listed for trial, the petitioners had sought an adjournment on the premise that the first petitioner, who was to be examined in the court ,had medical problem. Exts.A1 to A3 generally indicate that he has been undergoing some treatment in the cardiology department since long. It is also stated that on 4/6/2016 he had gone to the cardiology department and had undergone check up. On 11/6/2018 he was seen by the orthopedic surgeon who had advised medical rest. Both the courts disbelieved Exts.A1 to A3. Apparently, he has been attending the Cardiology Department of Shree Chithra Institute from 2006 onwards. As indicated supra, prima facie there is nothing to doubt the genuineness of the certificates issued by the competent doctors. It is true that the first petitioner did not claim that he was suffering from any specific medical problem during those days. He also did claim that he was advised bed rest. However, he had tried to clarify the connection between Exts.A2 and A3 affirming that it was in continuation to his medical check up evidenced by Ext.A2, that he had met the orthopedic surgeon. Hence, Exts.A2 and A3 cannot be brushed aside for the simple reason that Ext.A2 relates to cardiology department and Ext.A3 refers to orthopeadic department of another hospital. It is also to be noted that he had been undergoing treatment since long. Further, it is also seen from Ext.A3 that the doctor, after examining him, had certified that he needed medical O.P.(C)Nos.1225 & 1226/2019 19 rest, though not complete bed rest. For the reasons mentioned above, I am not inclined to completely brush aside Exts.A1 to A3, especially in the absence of any specific allegation that it was procured for the purpose of protracting the proceedings. 23. It is true that Exts.B1 to B3 indicate that during the relevant time the first petitioner had attended the court at Pathanmanthitta after travelling from Thiruvananthapuram, though he did not present himself before the trial court. It was explained by the counsel for the petitioners that memo was filed in those cases that the appeals were not pressed and the petitioner only intended to represent himself and to oppose the application, since he did not want the “not pressed memo” to be allowed, without any objection. It was only formal posting and not one which involved strenuous participation. However, according to the learned counsel, he was not physically and mentally fit for facing the trial during the medical rest advised by the doctor. It seems that he has sufficiently explained why he was present in the court in another case during the relevant days. 24. To support the contention that there was no bona fide in the contention of the petitioners, learned senior counsel for the respondents had relied on the previous conduct of the petitioners, when the suit came up for trial on two earlier occasions. On both occasions, adjournments were sought by the petitioners on medical grounds. In March 2007, when O.P.(C)Nos.1225 & 1226/2019 20 one case was included in the list, the first petitioner applied to remove the case from the list on medical ground. The reason stated was that he was undergoing treatment at cardiology department of Sree Chithira Institute and the suit was dismissed. It was later restored on an application. The case was again listed in 2012 and adjournment was sought on the same ground as mentioned in 2007. The suit was again dismissed and was restored on payment of Rs.5,000/- as costs. It shows that on all the three occasions including the present one, same reason was projected by the petitioners for seeking restoration of the suits which were consistently dismissed. Of course, this shows that the petitioners have repeatedly sought adjournment on same ground, whenever the matter came up for trial. Definitely, this medical ground cannot be a perpetual reason for seeking adjournments every time. In this background, the case of the respondents that the first petitioner has been trying to avoid the trial also assumes significance and it indicates that there are also some laches on the part of the petitioners. 25. It is true that the suit is of the year 2003. Even now evidence has not been recorded. The respondents have a definite case that petitioners have initiated several proceedings calculated to delay or protract the trial, since the petitioners did not have an arguable case. Petitioners have a counter allegation that the respondents are responsible for delaying the proceedings. It was alleged that several forged documents were introduced by the respondents and petitioners O.P.(C)Nos.1225 & 1226/2019 21 were constrained to initiate appropriate legal proceedings against them. Ultimately they could succeed in establishing that documents produced by the respondents were forged, it was argued. Further argument advanced by the respondents was that after the original petition filed by the petitioners before this court was disposed of with a direction for a time bound disposal, thirty interlocutory applications were filed. This indicates that the petitioners were bent upon protracting the proceedings, it was argued. It seems that most of the above applications were essentially intended to facilitate the progress of trial and for proceeding the suit forward. 26. In spite of all the above contentions, it cannot be forgotten that the petitioners have been prosecuting the matter since 2003. It is also seen that the petitioners have challenged few of the orders before the higher forum. In fact, the original petition was filed with a direction for an early disposal. It cannot be completely said that the petitioners alone are responsible for the long delay in the proceedings. Various other reasons have also attributed to it. It is seen that the petitioners have taken up the advocate commission, got the properties measured and the reports were also made available to the courts. 27. Having considered the above, I am not inclined to hold that the petitioners were causing delay and that they were actuated by mala fide motives in delaying and protracting the proceedings. However, the laches from the side of the petitioners also cannot be ignored. Having O.P.(C)Nos.1225 & 1226/2019 22 evaluated this and after having balanced the rival contentions, I feel that one last opportunity can be granted to the petitioners, subject to imposition of costs for the laches, which are patent on record. It is made clear that this is only intended to enable the petitioners to contest the matter on merits as a last opportunity. It is also made clear that if the trial court finds that the petitioners are adopting any delaying tactics, it will be free to pass appropriate orders. 28. In the result, the original petitions are allowed. The impugned judgment of the lower court in CMA. Nos. 42/2018 and 41/2018 and the order of the trial court in IA. Nos.386/2018 and 387/2018 stands set aside. IA Nos.386/2018 and 387/2018 stand allowed. O.S.Nos.93/2013 and O.S.No.34/2013 will stand restored subject to the condition that the petitioners herein deposits a total sum of Rs.20,000/- (Rupees twenty thousand only)with Kerala State Mediation and Conciliation Centre, High Court of Kerala, Ernakulam within one month from today. 29. Both sides shall appear before the court below on 28/11/2019 without any further notice. Produce receipt evidencing deposit before court below. In case of non payment of costs as above, the original petitions will stand dismissed and the impugned orders will stand revived without any further orders. The court below shall dispose of all the interlocutory applications pending before it within one month from the date of appearance of the parties. Thereafter the court shall list the case for trial and dispose it of within four months thereafter. O.P.(C)Nos.1225 & 1226/2019 23 The original petitions are disposed of as above. **Sd/-** **SUNIL THOMAS** dpk **JUDGE** O.P.(C)Nos.1225 & 1226/2019 24 ## **APPENDIX OF OP(C) 1225/2019** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE AMENDED PLAINT IN OS NO.93/13 OF THE HON'BLE SUB COURT, PATHANAMTHITTA, DATED 01.06.2018** - **EXHIBIT P2 TRUE COPY OF THE COMMON JUDGMENT OF THE DISMISSAL ORDER ON DEFAULT OF OS NO.93/2013 AND OS NO.34/2016 OF HON'BLE SUB COURT, PATHANAMTHITTA, DATED 13.06.2018** **EXHIBIT P3 TRUE COPY OF THE RESTORATION PETITION I.A.NO.386/2018 IN OS NO.93/2013 OF HON'BLE SUB COURT, PATHANAMTHITTA, DATED 28.06.2018** - **EXHIBIT P4 TRUE COPY OF THE DISMISSAL ORDER DATED 04.10.2018 IN I.A.NO.386/2018 IN OS NO.93/2013 OF HON'BLE SUB COURT, PATHANAMTHITTA** **EXHIBIT P5 TRUE COPY OF THE COMMON JUDGMENT DATED 02.04.2019 IN CMA NO.41/18 AND CMA NO.42/18 OF HON'BLE DISTRICT COURT, PATHANAMTHITTA** RESPONDENTS EXHIBITS EXT.R5(1): COPY OF THE ORDER DATED 30/8/2008 IN IA NO.1778/2007 IN OS NO.84/2003 OF THE MUNSIF'S COURT, PATHANAMTHITTA. EXT.R5 (2): COPY OF THE ORDER DATED 11/12/2014 IN IA NO.1770/2012 IN OS NO. 84/2003. EXT.R5(3): COPY OF THE IA NO.341/2018 IN OS NO.341 OF 2016 IN OS NO. 34/2016 BEFORE SUB COURT, PATHANAMTHITTA. EXT..R5(4): COPY OF THE TREATMENT CERTIFICATE DATED 4/6/2018 FROM THE SREECHITRA THIRUNAL INSTITUTE FOR MEDICAL SCIENCES. EXT.R5(5): COPY OF THE COUNTER AFFIDAVIT IN IA NO.341/2018 IN OS NO. 34/2016 EXT.R5(6): COPY OF THE ORDER DATED 6/8/2018 IN IA NO. 431/2018 IN OS NO. 34/2016. EXT.R5(7): COPY OF THE COUNTER AFFIDAVIT IN IA NO. 386/2018 IN OS NO. 93/2013. EXT.R5(8): COPY OF THE PROCEEDINGS ON 16/6/2018 IN CMA NO. 51/2017 BEFORE THE DISTRICT COURT, PATHANAMTHITTA. EXT.R5(9) COPY OF THE PROCEEDINGS ON 18/6/2018 IN CMA NO. 51/2017 EXT.R5(10): COPY OF THE REPLY AFFIDVIT FILED BY THE 1ST PETITIONER IN IA NO. 387/2018 IN OS NO.34/2016 O.P.(C)Nos.1225 & 1226/2019 25 EXT.R5(11): COPY OF THE CMA NO.41/2018 FILED BY THE PETITIONERS BEFORE THE DISTRICT COURT, PATHANAMTHITTA. EXT.R5(12) COPY FO THE ORDER DATED 10/4/2003 IN IA NO. 385/2003 IN OS NO. 84/2003 OF THE MUNSIFF'S COURT, PATHANAMTHITTA. O.P.(C)Nos.1225 & 1226/2019 26 ## **APPENDIX OF OP(C) 1226/2019** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE AMENDED PLAINT IN O.S.NO.34/16 OF HON'BLE SUB COURT, PATHANAMTHITTA, DATED 13.2.2013.** **EXHIBIT P2 TRUE COPY OF THE JOINT WRITTEN STATEMENT FILED BY THE 1ST AND 2ND DEFENDANT IN THE SUIT IN O.S.NO.34/2016 DATED 17.11.2003.** **EXHIBIT P3 TRUE COPY OF THE MEDICAL CERTIFICATE OF SREE CHITHIRA THIRUNAL INSTITUTE FOR MEDICAL SCIENCES AND TECHNOLOGY, DATED 16.11.2006 OF THE PETITIONER. EXHIBIT P4 TRUE COPY OF THE TREATMENT CERTIFICATE OF SREE CHITHIRA THIRUNAL INSTITUTE FOR MEDICAL SCIENCES AND TECHNOLOGY, DATED 4.6.2018 OF THE PETITIONER. EXHIBIT P5 TRUE COPY OF ECO CARDIO GRAM TEST OF SREE CHITHIRA THIRUNAL INSTITUTE FOR MEDICAL SCIENCES AND TECHNOLOGY, DATED 4.6.2018 OF THE PETITIONER. EXHIBIT P6 TRUE COPY OF THE MRI REPORT OF SREE CHITHIRA THIRUNAL INSTITUTE FOR MEDICAL SCIENCES AND TECHNOLOGY, DATED 3.1.2012 OF THE PETITIONER. EXHIBIT P7 TRUE COPY OF THE CONSULTATION CHARGE OF JUBILEE MEMORIAL HOSPITAL TRIVANDRUM DATED 11.6.18 OF THE PETITIONER. EXHIBIT P8 TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED BY DR.GEORGE ANDREWS OF JUBILEE MEMORIAL HOSPITAL TRIVANDRUM DATED 11.6.2018 OF THE PETITIONER. EXHIBIT P9 TRUE COPY OF THE COMMON JUDGMENT OF THE DISMISSAL ORDER ON DEFAULT OF O.S.NO.93/2013 AND O.S.NO.34/2016 OF HON'BLE SUB COURT, PATHANAMTHITTA, DATED 13.6.2018. EXHIBIT P10 TRUE COPY OF THE RESTORATION PETITION I.A.NO.387/2018 IN O.S.NO.34/2016 OF HON'BLE SUB COURT, PATHANAMTHITTA, DATED 28.6.18.** O.P.(C)Nos.1225 & 1226/2019 27 **EXHIBIT P11 TRUE COPY OF THE REPLY AFFIDAVIT FILED BY THE PETITIONER IN IA.NO.387/2018 IN O.S.NO.34/2016 OF HON'BLE SUB COURT, PATHANAMTHITTA, DATED 19.9.2018. EXHIBIT P12 TRUE COPY OF THE M.R.I. REPORT OF SREE CHITHIRA THIRUNAL INSTITUTE FOR MEDICAL SCIENCES AND TECHNOLOGY, DATED 7.9.2018 OF THE PETITIONER. EXHIBIT P13 TRUE COPY OF THE PRESCRIPTION OF SREE CHITHIRA THIRUNAL INSTITUTE FOR MEDICAL SCIENCES AND TECHNOLOGY, DATED 7.9.2018 OF THE PETITIONER. EXHIBIT P14 TRUE COPY OF THE DISMISSAL ORDER DATED 4.10.2018 IN I.A.NO.387/2018 IN O.S.NO.34/2016 OF HON'BLE SUB COURT, PATHANAMTHITTA. EXHIBIT P15 TRUE COPY OF THE COMMON JUDGMENT DATED 2.4.2019 IN CMA.NO.41/18 AND CMA NO.42/18 OF HON'BLE DISTRICT COURT, PATHANAMTHITTA. EXHIBIT P16 A TRUE COPY OF THE JUDGMENT IN C.R.P NO.761 OF 2008 OF HON'BLE HIGH COURT OF KERALA DATED 01-06-2010. EXHIBIT P17 A TRUE COPY OF THE REGISTERED POWER OF ATTORNEY FROM SRO KONNI NO.IV 26/2018 WRITTEN BY DR.USHA GICY GEORGE DATED 03-022018. EXHIBIT P18 A TRUE COPY OF THE ORDER IN I.A. NO.216 OF 2018 IN O.S. NO.34 OF 2016 AND THE HON'BLE TRIAL COURT DATED 06-04-2018. EXHIBIT P19 A TRUE COPY OF THE COUNTER AFFIDAVIT FILE D IN I.A NO.385 OF 2003 IN O.S NO.84 OF 2003 DATED 24-03-2003. EXHIBIT P20 A TRUE COPY OF THE PARTITION DEED NO.2162/1978 OF SRO KONNI DATED 14-08-1978. EXHIBIT P21 A TRUE COPY OF THE POSSESSION CERTIFICATE NO.356 OF 2003 OF ARUVAPURAM VILLAGE DATED 20-02-2003. EXHIBIT P22 A TRUE COPY OF THE POSSESSION CERTIFICATE NO.354 OF 2003 OF ARUVAPURAM VILLAGE DATED 20-02-2003. EXHIBIT P23 A TRUE COPY OF THE SURVEY MAP DRAWN BY** O.P.(C)Nos.1225 & 1226/2019 28 **RETIRED VILLAGE OFFICER P.M.BEEVI AMIN DATED 24-03-2003.** ||**RETIRED VILLAGE OFFICER P.M.BEEVI AMIN**<br>**DATED 24-03-2003.**| |---|---| |**EXHIBIT P24**|**A TRUE COPY OF THE SALE DEED NO. 1522/2001**| ||**OF SRO KONNI DATED 20-06-2001.**| |**EXHIBIT P25**|**A TRUE COPY OF THE POKKU VARAVU APPLICATION**| ||**FILED BY THE 1ST DEFENDANT AS P.V NO.**| ||**153/2004 DATED 17-06-2004 IN FAVOUR OF MRS.**| ||**KUNJUNJAMMA THOMAS AND MISS. THANKAMMA**| ||**THOMAS.**| |**EXHIBIT P26**|**A TRUE COPY OF THE THANDAPER ACCOUNT**| ||**NO.1937 OF THE DEFENDANT SRI.JOSEPH GEORGE**| ||**OF ARUVAPURAM VILLAGE.**| |**EXHIBIT P27**|**A TRUE COPY OF THE THANDAPER ACCOUNT NO.**| ||**8786 OF MRS. KUNJUNJAMMA THOMAS OF**| ||**ARUVAPURAM VILLAGE DATED 17-6-2004.**| |**EXHIBIT P28**|**A TRUE COPY OF THE LETTER SENT TO THE**| ||**INFORMATION OFFICER, ARUVAPURAM VILLAGE**| ||**DATED 13-02-2017.**| |**EXHIBIT P29**|**A TRUE COPY OF THE REPLY LETTER FROM THE**| ||**INFORMATION OFFICER, ARUVAPURAM DATED 16-**| ||**03-2017.**| |**EXHIBIT P30**|**A TRUE COPY OF THE ORDER IN I.A.NO.566/2017**| ||**DATED 04-12-2017.**| |**EXHIBIT P31**|**A TRUE COPY OF THE COUNTER AFFIDAVIT FILED**| ||**BY MR.MATHEW VARGHESE IN I.A.NO.566 DATED**| ||**04-12-2017.**| |**EXHIBIT P32**|**A TRUE COPY OF THE REPLY LETTER FROM THE**| ||**INFORMATION OFFICER, ARUVAPURAM VILLAGE**| ||**DATED 09-05-2019 NO. 3/2019.**| |**EXHIBIT P33**|**A TRUE COPY OF THE MEMO FILED BY DEFENDANTS**| ||**NOS.4,5,6 & 8, DATED 03-04-2018.**| |**EXHIBIT P34**|**A TRUE COPY OF THE ORDER SHEET IN O.S**| ||**NO.34/2016 OF HON'BLE SUB COURT,**| ||**PATHANAMTHITTA DATED FROM 01-09-2016 TO 13-**| ||**06-2018.**| |**EXHIBIT P35**|**A TRUE COPY OF THE ORDER IN I.A NO.**| ||**467/2017 IN O.S 34/2016 OF HON'BLE SUB**| ||**COURT, PATHANAMTHITTA DATED 18-09-2017.**| |**EXHIBIT P36**|**A TRUE COPY OF THE ORDER IN I.A NO.647/2017**| ||**IN C.M.A NO.51/2017 OF HON'BLE DISTRICT &**| O.P.(C)Nos.1225 & 1226/2019 29 **SESSIONS COURT, PATHANAMTHITTA DATED 11-042018 DISMISSING THE INTERIM STAY APPLICATION FILED BY THE CONTESTING RESPONDENT.** - **EXHIBIT P37 A TRUE COPY OF THE NOT PRESSED MEMO FILED BY THE CONTESTING RESPONDENTS DATED 07-062018.** - **EXHIBIT P38 A TRUE COPY OF THE ORDER SHEET IN C.M.A NO.51/2017 OF HON'BLE DISTRICT & SESSIONS COURT, PETHANAMTHITTA DATED FROM 02-11-2017 TO 16-06-2018.** **EXHIBIT P39 A TRUE COPY OF THE ORDER OF HON'BLE SUB COURT, PATHANAMTHITTA IN O.S NO.162/1996 FOR PAYMENT RS. 4660/- DATED 2-12-2013.** **EXHIBIT P40 A TRUE COPY OF THE JUDGMENT IN C.R.L.M.P NO.84/2007 BY THE HON'BLE SUPREME COURT OF INDIA DATED 15-01-2007.** **EXHIBIT P41 A TRUE COPY OF THE DECREE IN R.S.A NO.1116/2009 OF THE HON'BLE HIGH COURT OF KERALA DATED 03-12-2013.** **EXHIBIT P42 A TRUE COPY OF THE ORDER IN M.C. NO.46/1997 OF THE HOJ'BLE SUB DIVISION MAGISTRATE COURT, ADOOR DATED 20-05-1998.** EXT.R5(1): COPY OF THE ORDER DATED 30/8/2008 IN IA NO.1778/2007 IN OS NO.84/2003 OF THE MUNSIFF'S COURT, PATHANAMTHITTA. EXT.R5(2): COPY OF THE ORDER DATED 11/12/2014 IN IA NO. 1770/2012 IN OS NO. 84/2003. EXT.R5(3): COPY OF THE IA NO.341/2018 IN OS NO. 341/2016 BEFORE SUB COURT, PATHANAMTHITTA. EXT.R5(4): COPY OF THE TREATMENT CERTIFICATE DATED 4/6/2018 FROM THE SREECHITRA THIRUNAL INSITUTUTE FOR MEDICAL SCIENCES. EXT.R5(5): COPY OF THE COUNTER AFFIDAVIT IN IA NO. 341 OF 2018 IN O S NO. 34/2016. EXT..R5(6): COPY OF THE ORDER DATED 6/8/2018 IN IA NO. 431/2018 IN OS NO.34/2016. EXT.R5(7): COPY OF THE COUNTER AFFIDAVIT IN IA NO. 387/2018 IN OS NO. 93/2013 EXT.R5(8) COPY OF THE PROCEEDINGS ON 16/6/2018 IN CMA NO. 51/2017 BEFORE THE DISTRICT COURT, PATHANAMTHITTA. EXT.R5 (9): COPY OF THE PROCEEDINGS ON 18/6/2018 IN CMA NO.51/2017 EXT.R5(10): COPY OF THE REPLY AFFIDAVIT FILED BY THE 1ST PETITIONER IN IA NO. 387/2018 O.P.(C)Nos.1225 & 1226/2019 30 IN OS NO. 34/2016 EXT.R5(11): COPY OF THE CMA NO. 42 OF 2018 FILED BY THE PETITIONERS BEFORE THE DISTRICT COURT PATHANAMTHITTA. EXT.R5(12): COPY OF THE ORDER DATED 10/4/2003 IN IA NO. 385 OF 2003 IN OS NO.84 OF 2003 OF THE MUNSIFF'S COURT, PATHANAMTHITTA.