Mathew N.V. v. Anitha D Costa @ Chinnamma N.V. and Others

_**OP(C).3113/18**_ 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 5[TH] DAY OF AUGUST 2021 / 14TH SRAVANA, 1943** **OP(C) NO. 3113 OF 2018** **AGAINST THE ORDER/JUDGMENT IN OS 83/2008 OF SUB COURT, SULTHAN BATHERY, WAYANAD** ## **PETITIONER/S:** MATHEW N.V., AGED 50 YEARS AGED 50, S/O VARKEY, NIRAPPUTHOTTIYIL HOUSE, EDAVAKA AMSOM DESOM, MANANTHAVADY TALUK, WAYANADU DISTRICT, PINCODE - 670645. BY ADVS. SIRAJ KAROLY SRI.C.K.PREM RAJ ## **RESPONDENT/S:** 1 ANITHA D COSTA @ CHINNAMMA N.V., D/O VARKEY, AGED 59, KURPPIDIT NAGAR, HOUSE NO 214, C/O SURESH BHAI MESTHRI, NAVADAJA P.O., AHAMMEDABAD, PIN - 13, GUJARATH. 2 ELIKUTTY DEVASSIA, AGED 69 YEARS, W/O.DEVASSIA, KUDAKASSERIYIL (HOUSE), VALAD.P.O., THAVINJAL AMSOM DESOM, MANANTHAVADY TALUK, WAYANAD, PINCODE-670645. 3 DEVASSIA N.V(DIED), S/O.VARKEY, NIRAPPUTHOTTIYIL HOUSE, EDAVAKA.P.O., EDAVAKKA AMSOM DESOM, MANANTHAVADY TALUK, WAYANAD, PINCODE-670645. 4 KURIAN N.V.(DIED), S/O.VARKEY, NIRAPPUTHOTTIYIL HOUSE, EDAVAKA.P.O., EDAVAKKA AMSOM DESOM, MANANTHAVADY TALUK, WAYANAD, PINCODE-670645. 5 MERY N.V., AGED 62 YEARS, D/O.VARKEY, NIRAPPUTHOTTIYIL HOUSE, EDAVAKA.P.O., EDAVAKKA AMSOM DESOM, MANANTHAVADY _**OP(C).3113/18**_ 2 TALUK, WAYANAD, PINCODE-670645. 6 JOSEPH N.V., AGED 57 YEARS, S/O.VARKEY, NIRAPPUTHOTTIYIL HOUSE, THRISSILERY.P.O., THRISSILERY AMSOM DESOM, MANANTHAVADY TALUK, WAYANAD, PINCODE-670645. 7 THOMAS N.V., AGED 54 YEARS, S/O.VARKEY, NIRAPPUTHOTTIYIL HOUSE, MARTHOMA NAGAR.P.O., GUDALOOR, NILGIRIS, TAMILNADU. 8 ANNAMMA VARKEY, (DIED), W/O.VARKEY. 9 ELIYAMMA, AGED 65 YEARS, W/O.LATE KURIAN, NIRAPPUTHOTTIYIL HOUSE, EDAVAKA.P.O., EDAVAKKA AMSOM DESOM, MANANTHAVADY TALUK, WAYANAD, PINCODE-670645. 10 BINDHU, AGED 42 YEARS, D/O.LATE KURIAN, NIRAPPUTHOTTIYIL HOUSE, EDAVAKA.P.O., EDAVAKKA AMSOM DESOM, MANANTHAVADY TALUK, WAYANAD, PINCODE-670645. 11 JILSON, AGED 39 YEARS, S/O.LATE KURIAN, NIRAPPUTHOTTIYIL HOUSE, EDAVAKA.P.O., EDAVAKKA AMSOM DESOM, MANANTHAVADY TALUK, WAYANAD, PINCODE-670645. 12 BEENA, AGED 36 YEARS, D/O.LATE KURIAN, NIRAPPUTHOTTIYIL HOUSE, EDAVAKA.P.O., EDAVAKKA AMSOM DESOM, MANANTHAVADY TALUK, WAYANAD, PINCODE-670645. 13 LEELAMMA, W/O.DEVASSYA (LATE), NIRAPPUTHOTTIYIL HOUSE, NOW RESIDING AT ATHIPALY.P.O., NAMBALAKKOTTA AMSOM DESOM, GUDALUR TALUK, NILGIRIS. 14 BIJU, S/O.DEVASSYA (LATE), AGED 50 YEARS, NIRAPPUTHOTTIYIL HOUSE, NOW RESIDING AT ATHIPALY.P.O., NAMBALAKKOTTA AMSOM DESOM, GUDALUR TALUK, NILGIRIS. 15 BINU, AGED 47 YEARS, S/O.DEVASSYA (LATE), NIRAPPUTHOTTIYIL HOUSE, NOW RESIDING AT ATHIPALY.P.O., NAMBALAKKOTTA _**OP(C).3113/18**_ 3 AMSOM DESOM, GUDALUR TALUK, NILGIRIS. 16 BINOY, AGED 44 YEARS, S/O.DEVASSYA (LATE), NIRAPPUTHOTTIYIL HOUSE, NOW RESIDING AT ATHIPALY.P.O., NAMBALAKKOTTA AMSOM DESOM, GUDALUR TALUK, NILGIRIS. 17 SMITHA, ADGED 34 YEARS, D/O.DEVASSYA (LATE), NIRAPPUTHOTTIYIL HOUSE, NOW RESIDING AT ATHIPALY.P.O., NAMBALAKKOTTA AMSOM DESOM, GUDALUR TALUK, NILGIRIS. BY ADVS. R5 TO R7 BY SRI.ARUN AJAY SHANKAR R1 BY SRI.JIKKU SEBAN GEORGE THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 6.7.2021, THE COURT ON 05.08.2021 DELIVERED THE FOLLOWING: _**OP(C).3113/18**_ 4 ## **V.G.ARUN, J. ----------------------------------------------O.P(C).3113 of 2018 ----------------------------------------------Dated this the 5[th] day of August, 2021** ## **JUDGMENT** Petitioner is the 7[th] defendant in O.S.No.83 of 2008 on the files of the Sub Court, Sulthan Batheri. The suit is filed by the 1[st] respondent seeking partition of the plaint schedule property by metes and bounds and allotment of 1/8 share to her. Later, the petitioner being absent on the date fixed for evidence, she was set _ex parte_ and an _ex parte_ decree was passed against her on 25.6.2013. The petitioner filed Exhibit P5 petition seeking to set aside the _ex parte_ decree along with Exhibit P6 application for condoning the delay of 695 days. The trial court dismissed both applications by Exhibit P7 common order. Aggrieved, the petitioner preferred Civil Miscellaneous Appeals before the District Court, Wayanad, which were dismissed _vide_ Exhibits P10 and P11 judgments. This original petition is filed challenging Exhibits P7, P10 and P11 orders. 2. Sri.Siraj Karoli, learned counsel for the petitioner contended that detailed explanation having been submitted for the petitioner's absence on the day fixed for evidence and also for trial and for the delay in filing the application for setting aside the _ex parte_ decree, the courts below committed gross illegality in dismissing the _**OP(C).3113/18**_ 5 application. In elaboration, it is submitted that on 21.4.2009, the petitioner's son was admitted in a hospital at Calicut with serious ailment and from then onwards he was undergoing continuous treatment and had to be hospitalised frequently. From April, 2009 to June, 2015, the petitioner and his wife were fully engaged in giving care and treatment to their son. The failure to appear on the day fided for evidence and the delay in filing the application for setting aside the decree being for reasons beyond the petitioner's control, the court should have adopted a liberal approach. It is contended that the attempt of the court should be to eschew technical and procedural objections and to render justice to the parties. 3. Sri.Gikku Seban George, learned counsel for the 1[st] respondent refuted the contentions and submitted that the attempt of the petitioner is to deliberately delay the proceedings in the final decree application. It is submitted that the suit was filed in the year 2008 and a preliminary decree for partition was passed on 25.6.2013. The application for setting aside _ex parte_ decree was filed only after receipt of notice in the final decree application. It is contended that the preliminary decree is not an _ex parte_ decree in the strict sense since the other defendants had contested the matter and given evidence. Therefore, the remedy available to the petitioner is to file appeal against the preliminary decree. Reliance is placed on the decision of the Apex Court in _**Kerala State Electricity Board, Tvm.**_ _**OP(C).3113/18**_ 6 _**v. Precot Meridian, Palakkad**_ [2016 (4) KHC 829] to contend that a strict view has to be adopted when there is inordinate delay. Finally, it is submitted that, indulgence shown to the petitioner will be to the prejudice of the 1[st] respondent, who has been prosecuting her case for more than 12 years. 4. A reading of Exhibit P3 judgment in O.S.No.83 of 2008 shows that the judgment was rendered on merits, though the 7[th] defendant/petitioner remained _ex parte_ . The judgment and decree are dated 25.6.2013. The application for setting aside the _ex parte_ decree was filed only on 19.6.2015, with a delay of 695 days. In Exhibit P7 order the court below noticed that the petitioner did not even show the fairness to prove the averments that he was prevented from attending the court due to the illness of his son. No evidence, either oral or documentary, was tendered by the petitioner. No such attempt was made even at the appellate stage. It is only in this original petition that some documents pertaining to the treatment of the petitioner's son are produced. Therefore, in spite of the strenuous contention by the learned counsel for the petitioner that an opportunity should be granted for contesting the suit on merits, I am not inclined to grant the relief, the petitioner having failed to tender evidence in support of his case at the appropriate stage. 5. No doubt, the courts should adopt a liberal, pragmatic, justice oriented, non-pedantic approach while dealing with an application for _**OP(C).3113/18**_ 7 condonation of delay. At the same time, the Apex Court has also held that an application for condonation of delay should be drafted with careful concern and not in a haphazard manner, harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a list on merits is seminal to the justice dispensation system. In _**Esha Battacharjee v. Managing**_ ## _**Committee of Raghunathpur Nafar Academy and others**_ [(2013) 12 SCC 649], the Honourable Supreme Court frowned upon the increasing tendency to perceive delay as a non-serious matter and has observed that the lackadaisical propensity exhibited in a non-chalant manner requires to be curbed. This Court in _**Precot Meridian (supra)**_ referred to the decision in _**Ezha Battacharjee (supra)**_ and held that the concept of liberal approach has to encapsulate the conception of reasonableness and cannot be allowed a totally unfettered free play. 6. As rightly contended by the learned counsel for the 1[st] respondent, this Court cannot be oblivious to the prejudice to which the respondents will be put, if a liberal approach is adopted and the impugned orders interfered with for no justifiable reason. In the result, the original petition is dismissed. **Sd/V.G.ARUN, JUDGE** _vgs_ _**OP(C).3113/18**_ 8 ## **APPENDIX OF OP(C) 3113/2018** PETITIONER EXHIBITS - EXHIBIT P1 TRUE COPY OF THE PLAINT DATED 9.4.2008 IN O.S.NO.83/2008 ON THE FILE OF THE SUB JUDGMENT, SULTHAN BATHERI. - EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT DATED 12.12.2008 IN O.S.NO.83/2008 ON THE FILE OF THE SUB JUDGE SULTHAN BATHERI. - EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 25.6.2013 IN O.S.NO.83/2008 OF THE SUB COURT, SULTHAN BATHERY. - EXHIBIT P4 TRUE COPY OF THE DECREE DATED 25,6,2013 IN O.S.NO.83/2008 OF THE SUB COURT, SULTAN BATHERI. - EXHIBIT P5 TRUE COPY OF I.A.NO.539/2015 DATED 19.6.2015 BEFORE THE SUB COURT, SULTANBATHERI. - EXHIBIT P6 TRUE COPY OF THE DELAY CONDONATION PETITION FILED ALONG WITH PETITION TO SET ASIDE THE DECREE O.S.NO.83/2018 DATED 19.6.2015. - EXHIBIT P7 TRUE COPY OF THE ORDER DATED 19.2.2016 IN I.A.NOS.539/2015 & 540/2015 IN - O.S.NO.83/2008 OF THE SUB COURT, SULTHAN BATHERY. - EXHIBIT P8 TRUE COPY OF THE C.M.A.NO.2/2016 DATED 7.6.2017 FILED BEFORE THE DISTRICT COURT WAYANAD KALPATTA. - EXHIBIT P9 TRUE COPY OF THE C.M.A.3/2016 DATED 7.6.2017 FILED BEFORE THE DISTRICT COURT, WAYANAD, KALPETTA. - EXHIBIT P10 TRUE COPY OF THE COMMON JUDGMENT DATED 22.10.2018 IN C.M.A.NO.2/2016 OF THE COURT OF THE ADDITIONAL DISTRICT JUDGE-II, KALPETTA, WAYANAD. EXHIBIT P11 TRUE COPY OF THE COMMON JUDGMENT DATED _**OP(C).3113/18**_ 9 ||22.10.2018 IN C.M.A.NO.3/2016 OF THE COURT| |---|---| ||OF THE ADDITIONAL DISTRICT JUDGE-II,| ||KALPETTA, WAYANAD.| |EXHIBIT P12|TRUE COPY OF THE FINAL DECREE APPLICATION| ||DATED 26.3.2015 F.D.I.A.NO.376/15 IN| ||O.S.NO.83/2008 ON THE FILE OF SUBORDINATE| ||JUDGE'S COURT, SULTHANBATHERY.| |EXHIBIT P13|TRUE COPY OF THE MEDICAL CARD SHOWING| ||SUMMARY OF TREATMENT ISSUED FROM INSTITUTE| ||OF MATERNAL & CHILD HEALTH, CALICUT.| |EXHIBIT P14|TRUE COPY OF THE REQUEST OF X-RAY| ||CONSULTATION DATED 21.4.2009 ISSUED FROM| ||MEDICAL COLLEGE HOSPITAL, CALICUT.| |EXHIBIT P15|TRUE COPY OF THE DISCHARGE SUMMARY STATING| ||THE RECURRENCE OF THE ALIMENT ISSUED FROM| ||INSTITUTE OF MATERNAL & CHILD HEALTH,| ||CALICUT.| |EXHIBIT P16|TRUE COPY OF THE FOLLOW UP ACTION| ||INCLUDING THE ADMISSION AND DISCHARGE OF| ||ALEX MATHEW ISSUED FROM INSTITUTE OF| ||MATERNAL & CHILD HEALTH, MEDICAL COLLEGE,| ||KOZHIKODE.| |EXHIBIT P17|TRUE COPY OF THE ULTRASOUND SCAN REPORT OF| ||ALEX ISSUED FROM DISTRICT HOSPITAL,| ||MANANTHAVADY.| |EXHIBIT P18|TRUE COPY OF THE O.P. TICKET DATED| ||22.11.2015 ISSUED FROM MEDICAL COLLEGE| ||HOSPITAL (I.M.C.H.), CALICUT.| |EXHIBIT P19|TRUE COPY OF THE CERTIFICATE ISSUED BY| ||DR.DHANYA, DISTRICT HOSPITAL, MANANTHAVADY| ||DATED 8.11.2018.| |EXHIBIT P19|TRUE COPY OF THE MANUSCRIPT OBTAINED BY| ||PETITIONER FROM DR.DIVYA STATING THE| ||GRAVITY OF AILMENT.| |EXHIBIT P20|TRUE COPY OF THE CERTIFICATE ISSUED BY| ||DR.DIVYA C.K., PEDIATRICS, MANATHAVADY| ||GOVERNMENT DISTRICT HOSPITAL DATED| ||9.11.2018.| _**OP(C).3113/18**_ 10 EXHIBIT P21 TRUE COPY OF THE NOTE GIVEN BY THE PEDIATRICIAN FOR FURTHER PEDIATRIC SURGERY. EXHIBIT P22 PHOTOGRAPHS OF THE CHILD SHOWING THE SCARS AND OTHER SIGNS OF SURGERY.