K.A. Ashkar v Abdul Jaleel and Sreethi Jamal

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 28[TH] DAY OF MARCH 2022 / 7TH CHAITHRA, 1944 CRP NO. 254 OF 2020** **OS 711/2009 OF PRINCIPAL SUB COURT, ERNAKULAM REVISION PETITIONER/S:** K.A.ASHKAR AGED 50 YEARS S/O. ABDUL KHADER, C.C. 4/1259, VADAKKECHERALAYI MURIYIL, MATTANCHERRY, NOW RESIDING AT C.C.1/457, KUNNATHPARAMBIL, FORT KOCHI VILLAGE, PIN-682001. BY ADVS. G.KRISHNAKUMAR SRI.B.S.SURAJ KRISHNA ## **RESPONDENT/S:** 1 ABDUL JALEEL S/O. MUHAMMED MOOPAN, AGED 58 YEARS, 2/523, MANDAYAPPURATHU, THATTANKATTIL, UDYOGAMANDAL, EROOR-683501, NOW RESIDING AT T.P. XIII/210, MANDAYAPURATH, THANALOOR VILLAGE, TIRUR TALUK, PIN-676307. 2 SREETHI JAMAL, AGED 41 YEARS, S/O. SEETHI, THANIPEEDIKAYIL, KODUNGALLUR P.O., METHALA VILLAGE, KODUNGALLUR680664 (ORIGINAL DEFENDANT). BY ADVS. SRI.SHAHUL HAMEED MOOPPAN SRI.K.M.VARGHESE **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON** **30.11.2021, ALONG WITH OPC 1066/2020, THE COURT ON 28.03.2022 DELIVERED THE FOLLOWING:** CRP 254 OF 2020 & O.P.(C) No.1066 OF 2020 -2- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 28[TH] DAY OF MARCH 2022 / 7TH CHAITHRA, 1944 OP(C) NO. 1066 OF 2020** ## **OS 711/2019 OF PRINCIPAL SUB COURT, ERNAKULAM** **PETITIONER/S:** K.A.ASHKAR AGED 50 YEARS S/O.ABDUL KHADER, C.C.4/1259, VADAKKECHERALAYI MURIYIL, MATTANCHERRY, NOW RESIDING AT C.C.1/457, KUNNATHUPRAMBIL, FORT KOCHI VILLAGE, PIN - 682001. BY ADVS. G.KRISHNAKUMAR SRI.B.S.SURAJ KRISHNA ## **RESPONDENT/S:** 1 ABDUL JALEEL S/O.MUHAMMED MOOPAN, AGED 58 YEARS, 2/253, MANDAYAPPURATHU, THATTANKATTIL, UDYOGAMANDAL, EROOR - 683 501, NOW RESIDING AT T.P.XIII/210, MANDAYAPURATH, THANALOOR VILLAGE, TIRUR TALUK, PIN - 676 307. 2 SEETHI JAMAL AGED 41 YEARS, S/O.SEETHI, THANIPEEDIKAYIL, KODUNGALLUR P.O., METHALA VILLAGE, KODUNGALLUR - 680 664 (ORIGINAL DEFENDANT). BY ADVS. SHAHUL HAMEED MOOPPAN SHANAVAS KHAN (B/O) SRI.K.M.VARGHESE SRI.S.SHANAVAS KHAN SMT.S.INDU **THIS ORIGINAL PETITION HAVING COME UP FOR ADMISSION ON 28.03.2022, ALONG WITH CRP.254/2020, THE COURT ON 28.03.2022 DELIVERED THE FOLLOWING:** CRP 254 OF 2020 & O.P.(C) No.1066 OF 2020 -3- ## **ORDER** Dated this the 28[th] day of March, 2022 The petitioner is the plaintiff in O.S.No.711 of 2009 on the files of the Principal Sub Court, Ernakulam. The suit is filed praying for a decree of specific performance of the agreement for sale dated 02.03.2009, whereunder the second respondent, agreed to sell plaint schedule property having an extent of 3.555 cents, comprised in Sy.No.176/6A and 6B of Edappally South Village, to the petitioner for Rs.7,00,000/-. It was averred in the plaint that, out of the sale price of Rs.7,00,000/-, an amount of Rs.5,00,000/- was paid on the date of agreement. The petitioner was ready and willing to pay the balance sale price and demanded execution of the sale deed, but the second respondent did not accede to the demand. The suit was decreed ex-parte on 24.11.2011. CRP 254 OF 2020 & O.P.(C) No.1066 OF 2020 **==> picture [16 x 8] intentionally omitted <==** Thereafter, the petitioner filed an interlocutory application for getting the property executed in his name through court. The application was allowed and the property was registered in the petitioner's name vide document No.1679 of 2016 of SRO, Kochi. Thereupon, the petitioner filed application for getting delivery of the property and accordingly, the property was delivered to him on 30.07.2018. 2. While so, the first respondent filed I.A.Nos.2976, 2977 and 2979 of 2018. The prayer in I.A.No.2976 of 2018 was to set aside the ex- parte decree, I.A.No. 2979 of 2018 to condone the delay of 2415 days in filing the application for setting aside the ex-parte decree and I.A.No. 2977 of 2018 to get impleaded in the suit as additional defendant, in his capacity as _pendente_ _lite_ transferee. Despite petitioner's objection, the trial court allowed the applications by a common order. CRP No.254 of 2020 is filed against CRP 254 OF 2020 & O.P.(C) No.1066 OF 2020 **==> picture [16 x 9] intentionally omitted <==** the order in I.A.Nos.2976 and 2979 of 2018, O.P. (C)No.1066 of 2020, against the order in I.A.No.2977 of 2018. 3. Before considering the challenge against the impugned orders, it is apposite to consider the averments in the interlocutory applications filed by the 1[st] respondent, which are as under; 3.55 cents shown as the plaint schedule property, was purchased by the first respondent from the defendant (second respondent herein), as per Sale Deed No.2105 of 2009 dated 24.04.2009 of SRO, Edappally. Even before execution of the sale deed, the vendor had handed over the prior title deeds to the first respondent. After executing the sale deed, the property was mutated in the first respondent's name and assigned thanadaper account No.35574. From then onwards, the first respondent has been regularly paying basic tax for the property. Even though the first respondent hails from Eloor village, he was CRP 254 OF 2020 & O.P.(C) No.1066 OF 2020 -6- employed as a teacher at Malappuram till his retirement in March, 2018. The first respondent's wife is working as Manager in the State Bank of India. Hence, the first respondent and his family had to reside away from Erankulam and was not aware of the suit filed by the petitioner in collusion with the second respondent, nor of the ex-parte decree and execution of sale deed through court. After his retirement in March, 2018, the first respondent decided to construct a house in the 3.55 cents belonging to him. For that purpose, he applied for encumbrance certificate from Edappally SRO. On obtaining the encumbrance certificate, the first respondent was taken aback to find the entry relating to execution of sale deed No.1679 of 2016. Immediately, he obtained certified copy of the sale deed and made enquiries through his lawyer. Thereupon, he came to know about the suit and further proceedings. In his applications, the CRP 254 OF 2020 & O.P.(C) No.1066 OF 2020 **==> picture [16 x 8] intentionally omitted <==** first respondent had alleged that the petitioner and second respondent are close friends and had filed the suit collusively. They managed to obtain the ex-parte decree by the second respondent remaining absent. The petitioner is fully aware of the sale of the property to the first respondent. Being a bonafide purchaser for value, the first respondent should be permitted to contest the suit, lest his interest will be jeopardised. 4. In the counter affidavit filed by the petitioner, the factual averments in the first respondent's applications were refuted and it was contended that the interlocutory applications are filed in collusion with the second respondent, who after remaining ex-parte all throughout, had suddenly entered appearance on the first respondent filing the interlocutory applications. 5. Before the trial court, the first respondent got himself examined as PW1 and marked CRP 254 OF 2020 & O.P.(C) No.1066 OF 2020 **==> picture [16 x 9] intentionally omitted <==** Exts.P1 to P20 document. No evidence, either oral or documentary, was tendered by the petitioner. After consideration of the factual averments and scrutiny of evidence, the impugned order was passed allowing the application for condonation of delay on payment of cost of Rs.10,000/- and the application for setting aside the ex-parte judgment and decree allowed, on payment of cost of Rs.15,000/-. The application for impleading filed by the first respondent was also allowed. 6. Learned Counsel for the petitioner assailed the orders by contending that the court below committed gross illegality in casually condoning the delay and setting aside the exparte decree, ignoring the fact that the property had been registered in the petitioner's name through process of court. According to the learned Counsel, no explanation or valid reason was urged by the first respondent for the inordinate delay of 2414 days. The doctrine of CRP 254 OF 2020 & O.P.(C) No.1066 OF 2020 -9- 'comity and amity' is pressed into service to ontend that the court below should have refrai ed from interfering with a lawfully passed ex-p rte decree. 7 Learned Counsel for the first respondent contended that the trial court had passed the impugned order on being convinced about the reason for the delay in filing the application for setting aside ex-parte decree and in the absence of any further material, this Court will not be justified in upsetting the discretion thus exercised. According to the learned Counsel, the trial court had rightly relied on the decision of the Apex Court in _**Rajkumar v. Sardari Lal and others [(2004) 2 SCC 601],**_ to find that a _pendente lite_ transferee has the right to get impleaded in the suit. It is pointed out that the the impugned orders were passed on 30.07.2019 and the civil revision petition only on 23.3.2020 and CRP 254 OF 2020 & O.P.(C) No.1066 OF 2020 -10- the original petition on 03.07.2020. Much before that, on 07.08.2019, the petitioner had accepted the cost of Rs.25,000/- imposed as a condition for allowing the interlocutory applications. Thereafter, by order dated 09.08.2019, fresh notice was issued to the parties. Accordingly, the parties appeared and the suit was posted for the written statement of the defendant to 3.10.2019. After filing of written statement, the issues were framed on 03.01.2020 and listed to 10.03.2020. On that day, the petitioner filed an application for adjourning the suit by three weeks on medical grounds and the trial was adjourned to 16.03.2020. The suit was re-listed to 2.06.2020 due to the restricted functioning of the court, consequent upon the pandemic and lock down and again to 06.7.2020 and 10.07.2020. The petitioner's Counsel was absent on those posting dates, compelling the court to issue notice to the Counsel and to post the case on 21.07.2020. CRP 254 OF 2020 & O.P.(C) No.1066 OF 2020 **==> picture [23 x 8] intentionally omitted <==** On that day, the petitioner's Counsel informed the trial court that further proceedings in the suit is stayed by the High Court. It is hence contended that, having accepted the cost and having delayed the challenge against the impugned order, resulting in the court below proceeding with the suit up to the stage of trial, this Court will not be justified in interfering with the order at the petitioner's instance. I find substantial merit in the contention urged by the learned Counsel for the first respondent. As rightly argued, it is not for this Court to interfere with the discretion exercised by the trial court, in exercise of the supervisory power under Article 227, unless it is shown to be so patently illegal that no prudent person would have arrived at such decision. On facts also, I find the first respondent to have succeeded in offering an acceptable explanation CRP 254 OF 2020 & O.P.(C) No.1066 OF 2020 **==> picture [23 x 8] intentionally omitted <==** for the delay in filing the application for setting aside the ex-parte decree. The entitlement of a _pendente lite_ transferee, for getting impleaded in a suit pertaining to the property purchased by him, is settled by the decision in _**Rajkumar.**_ The doctrine of comity and amity has no application to the facts of the instant case. Moreover, having acquiesced to the impugned order by accepting the cost and having caused the court below to proceed with the suit, the petitioner cannot turn around and challenge the impugned order. For the aforementioned reasons, the civil revision petition and the original petition are dismissed. Sd/- ## **V.G.ARUN JUDGE** Scl/ CRP 254 OF 2020 & O.P.(C) No.1066 OF 2020 -13- ## **APPENDIX OF OP(C) 1066/2020** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE AFFIDAVIT AND PETITION IN IA NO.2977/2018 IN O.S.NO.711/2009 ON THE FILES OF THE SUB COURT, KOCHI. EXHIBIT P2 TRUE COPY OF THE COUNTER AFFIDAVIT IN OS NO.711/2009 ON THE FILES OF THE SUB COURT, KOCHI. EXHIBIT P3 TRUE COPY OF THE COMMON ORDER DATED 30/07/2019 IN IA NO.2977/2018 IN OS 711/2009 ON THE FILES OF THE SUB COURT, KOCHI. ## **RESPONDENT'S EXHIBITS** R1(A): TRUE COPY OF THE MEMO DATED 7.8.2019 EVIDENCING THE PAYMENT OF COST FILED IN O.S.NO.711/2019 ON THE FILE OF SUB COURT, ERNAKULAM. R1(B): TRUE COPY OF THE WRITTEN STATEMENT DATED 26.10.2019 FILED BY ME IN O.S.NO.711/2019 ON THE FILE OF SUB COURT, ERNAKULAM. R1(C): TRUE COPY OF THE WRITTEN STATEMENT DATED NIL FILED BY THE RESPONDENT NO.2 IN O.S.NO.711/2009 ON THE FILE OF SUB COURT, ERNAKULAM. R1(D): TRUE COPY OF THE PLAINT IN O.S.NO.711/2009 DATED 7.9.2009 ON THE FILE OF SUB COURT, ERNAKULAM. R1(E) – TRUE COPY OF THE I.A.NO.1/2020 IN O.S.NO.711/2009 CRP 254 OF 2020 & O.P.(C) No.1066 OF 2020 -14- DATED 10.3.2020 ON THE FILE OF SUB COURT, ERNAKULAM. EXHIBIT R1(F): TRUE COPY OF THE LETTER DATED 10.5.2019 ISSUED BY S.H.O, FORT KOCHI POLICE STATION.