Kunjan and Velayudhan v. Karthiyayani and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **WEDNESDAY, THE 27TH DAY OF FEBRUARY 2013/8TH PHALGUNA 1934** ## **OP(C).NO. 169 OF 2013 (O) -------------------------------------** ## **I.A.NO.4656 AND 4657 OF 2011 IN O.S. NO.740 OF 1997, FIRST ADDITIONAL MUNSIFF'S COURT, ERNAKULAM** ## **C.M.A. NO.110 OF 2011, SECOND ADDITIONAL DISTRICT COURT, ERNAKULAM** ## **PETITIONERS/APPELLANTS:** **-----------------------------------------** ## **1. KUNJAN** ## **S/O KOCHOL, RESIDING AT MANAKKAMOLATH, MANAKKAKADAVU THENGOD KARA, THRIKKAKKARA SOUTH VILLAGE KANAYANNUR TALUK, ERNAKULAM** ## **2. VELAYUDHAN,** **S/O KOCHAL, RESIDING AT MANAKKAMOLATH, MANAKKAKADAVU THENGOD KARA, THRIKKAKKARA SOUTH VILLAGE KANAYANNUR TALUK, ERNAKULAM** **BY SENIOR ADVOCATE SHRI S.SREEKUMAR SRI.N.RATHEESH SMT.SUMA RATHEESH** ## **RESPONDENTS-RESPONDENTS:** **----------------------------------------------** ## **1. KARTHIYAYANI** **D/O KUNJU KURUMBA, RESIDING AT MANAKKAKUDI THENGODU KARA, THRIKKAKKARA SOUTH VILLAGE KANAYANNUR TALUK 682028** ## **2. SASI,** **S/O KUNJU KURUMBA, RESIDING AT MANAKKAKUDI THENGODU KARA, THRIKKAKKARA SOUTH VILLAGE KANAYANNUR TALUK 682028** ## **O.P(C) NO.169 OF 2013** ## **3. MARIA,, AGED 68 YEARS** **W/O KUNJAN MANAPPILLINJALIYIL, THENGODU KARA THRIKKAKKARA SOUTH VILLAGE, KANAYANNUR TALUK 682028** **4. DEVAYANI,, AGED 42 YEARS D/O KUNJAN MANAPPILLINJALIYIL, THENGODU KARA THRIKKAKKARA SOUTH VILLAGE, KANAYANNUR TALUK 682028** ## **5. BHANU,, AGED 40 YEARS** - **D/O KUNJAN MANAPPILLINJALIYIL, THENGODU KARA THRIKKAKKARA SOUTH VILLAGE, KANAYANNUR TALUK 682028** ## **6. VASU,, AGED 37 YEARS** - **S/O KUNJAN MANAPPILLINJALIYIL, THENGODU KARA THRIKKAKKARA SOUTH VILLAGE, KANAYANNUR TALUK 682028** **7. REGI,, AGED 34 YEARS S/O KUNJAN MANAPPILLINJALIYIL, THENGODU KARA THRIKKAKKARA SOUTH VILLAGE, KANAYANNUR TALUK 682028** **RR1 & 2 BY ADV. SRI.N.NEELAKANDHAN NAMBOODIRI** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 27-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **O.P(C) NO.169 OF 2013** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **EXT. P1 TRUE COPY OF THE PLAINT DATED 09-04-1997 IN O.S NO 740/1997 IST ADDITIONAL MUNSIFF'S COURT, ERNAKULAM** **EXT. P2 TRUE COPY OF THE APPLICATION DATED 28-07-2011 IN I.A NO 4657/2011 IN O.S NO 740/1997 OF THE IST ADDITIONAL MUNSIFF'S COURT ERNAKULAM** **EXT. P3 TRUE COPY OF THE APPLICATION DATED 28-07-2011 IN I.A NO 4656/2011 IN O.S NO 740/1997 OF THE IST ADDITIONAL MUNSIFF'S COURT ERNAKULAM** **EXT. P4 TRUE COPY OF THE PLAINT DATED 21-11-1981 IN O.S NO 969/1981 OF THE MUNSIFF'S COURT, ERNAKULAM** **EXT. P5 TRUE COPY OF THE JUDGMENT DATED 22-03-1991 IN AS NO 234/1985 OF THE DISTRICT COURT, ERNAKULAM** **EXT. P6 TRUE COPY OF THE JUDGMENT DATED 23-12-1994 UB A.S NO 74/1992 OF THE DISTRICT COURT, ERNAKULAM** **EXT. P7 TRUE COPY OF THE JUDGMENT DATED 10-12-2003 IN O.S NO 740/1997 OF THE IST ADDITIONAL MUNSIFF'S COURT, ERNAKULAM** **EXT. P8 TRUE COPY OF THE COUNTER AFFIDAVIT DATED 03-10-2011 IN IA NO 4657/2011 IN O.S NO 740/1997 OF THE IST ADDITIONAL MUNSIFF'S COURT, ERNAKULAM** **EXT. P9 TRUE COPY OF THE COUNTER AFFIDAVIT DATED 03-10-2011 IN IA NO 4656/2011 IN O.S NO 740/1997 OF THE IST ADDITIONAL MUNSIFF'S COURT, ERNAKULAM** **EXT. P10 TRUE COPY OF THE COMMON ORDER DATED 22-11-2011 IN I.A NOS 4656/2011 AND 4657 /2011 IN I.S NO 740/1997 OF THE IL ADDITIONAL MUNSIFF'S COURT ERNAKULAM 22-11-2011** **EXT. P11 TRUE COPY OF THE ORDER DATED 06-10-2012 IN THE SAID C.M.A NO 110 OF 2011** ## **RESPONDENT(S)' EXHIBITS:** **NIL** **TRUE COPY** **P.S. TO JUDGE** ## **THOMAS P.JOSEPH, J.** **==================================== O.P(C) No.169 of 2013 ==================================== Dated this the 27[th] day of February, 2013** ## **J U D G M E N T** This Original Petition arises from the judgment of learned Second Additional District Judge, Ernakulam in C.M.A. No.110 of 2011 confirming dismissal of I.A. No.4656 and 4657 of 2011 in O.S. No.740 of 1997 of First Additional Munsiff's Court, Ernakulam. 2. Petitioners are defendants 3 and 4. Respondents 1 and 2 herein are legal representatives of the deceased original plaintiff who sued petitioners and others for recovery of possession of the property on the strength of title. An ex parte decree was passed on 25.02.1999. That was followed by petitioners filing I.A. No.4657 of 2011 to set aside the ex parte decree with I.A. No.4656 of 2011 to condone the delay of 882 days. Applications were resisted by the original plaintiff. Objection found favour with the learned Munsiff who dismissed the applications as per Ext.P10, order dated 22.11.2011. Learned Second Additional District Judge has confirmed that order as per Ext.P11, judgment on 06.10.2012. 3. Learned Senior Advocate for petitioners contended that petitioners have shown sufficient cause for the delay and for their absence in the trial court when the case was taken for trial. It is O.P(C) No. 169 of 2013 -: 2 :- contended that parties are closely related and having regard to the contentions raised by the petitioners, they may be given opportunity to contest the case on merit. 4. Learned counsel for respondents 1 and 2 contended that the Original Petition itself is not maintainable in view of the decision in **Muthuswamy v. Nurudheen** (2013 [1] KLT 257). It is further contended that reasons stated by the petitioners for condonation of delay is found to be not correct even from the evidence of P.W1. It is argued that there is no merit in the contentions raised by the petitioners in the suit itself. 5. True that this Court in the decision cited held that when challenge is to the refusal to set aside an ex parte decree, the order/judgment is revisable under Section 115 of the Code of Civil Procedure (for short, “the Code”) and that a Writ Petition under Article 227 of the Constitution is not maintainable. But this Original Petition is already admitted and it is not as if this Court has no power to invoke its supervisory jurisdiction under Article 227 of the Constitution. Normally a challenge to an order refusing to set aside the ex parte decree must be by way of a Revision under Sec.115 of the Code. If the argument of respondents 1 and 2 is to be accepted I must direct petitioners O.P(C) No. 169 of 2013 -: 3 :- to convert this Original Petition into a Civil Revision. On the facts of this case I am inclined to consider this petition under Article 227 of the Constitution. 6. As aforesaid, delay in applying to set aside the ex parte decree is of 882 days. In the affidavit in support of I.A. No.4656 of 2011 it is stated that second petitioner was laid up and hence the application could not be filed on time. When the second petitioner was examined as P.W.1 he stated that he was not ill and that first petitioner was ill. It is also stated that the last enquiry made with the counsel was on 15.11.2007. P.W.1 does not know what transpired after 15.11.2007. But he used to contact the counsel over telephone. From the above, courts below took the view that petitioners were not vigilant and had not conducted any enquiry regarding the stage of the case. 7. I must notice that the ex parte decree was passed on 25.02.2009. True that there is some discrepancy in the evidence of P.W1 as to who was ill at the relevant time. This is a suit for recovery of possession of immovable property on the strength of title. Except when contumacious negligence or gross laches on the part of the party concerned is shown, attempt of the court must be to decide the controversy on merit after giving parties O.P(C) No. 169 of 2013 -: 4 :- opportunity to adduce evidence. Minor laches on the part of petitioners could be corrected by the common curative of costs. Having regard to the facts and circumstances of the case, I am satisfied that delay is explained. I am inclined to allow the request made by the petitioners on costs. Resultantly, the Original Petition is disposed of as under: (i) Exhibit P11, judgment dated 06.10.2012 in C.M.A. No.110 of 2011 of Second Additional District Court, Ernakulam and Ext.P10, order dated 22.11.2011 on I.A. Nos.4656 and 4657 of 2011 in O.S. No.740 of 1997 of the First Additional Munsiff's Court, Ernakulam will stand set aside and I.A. Nos.4656 and 4657 of 2011 will stand allowed and consequently the ex parte decree dated 25.02.2009 will stand set aside on condition that petitioners deposit in the trial court for payment to respondents 1 and 2, Rs.10,000/- (Rupees Ten thousand only) by way of costs within a month from this day. (ii) On compliance of the aforesaid condition, the ex parte decree will stand set aside in its entirety and the trial court shall thereon dispose of the suit on merit. O.P(C) No. 169 of 2013 -: 5 :- (iii) In case condition in clause (i) is not complied, this Original Petition will stand dismissed in confirmation of the impugned order/judgment. ## **THOMAS P. JOSEPH, JUDGE.** vsv