OP(C) No. 2711 of 2011 (O)

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI THURSDAY, THE 6TH DAY OF DECEMBER 2012/15TH AGRAHAYANA 1934 OP(C).No. 2711 of 2011 (O) -------------------------(AGAINST THE ORDER IN I.A.1281/2004 & 1280/2004 IN OS.67/1995 ON THE FILE OF SUB COURT, NEYYATTINKARA) PETITIONER(S)/PETITIONERS/DEFENDANTS 26 AND 27: -------------------------------------------------------------------------------- 1. SELVARAJ, AGED 55 YEARS, S/O.DAMSY, RESIDING AT CHEMMANVILAKOM PUTHEN VEEDU, R.C.THERUVU, AMARAVILA, NEYYATTINKARA, PIN-695122 REP.BY HIS, WIFE AND P/A SHARLET, AGED 45, D/O. JOSEPHINE LAWRENCE, RESIDING AT CHEMMANVILAKOM PUTHEN VEEDU, R.C.THERUVU, AMARAVILA, NEYYATTINKARA, PIN-695122. 2. SHARLET, AGED 45 YEARS, D/O. JOSEPHINE LAWRENCE, RESIDING AT CHEMMANVILAKOM PUTHEN VEEDU, R.C.THERUVU, AMARAVILA, NEYYATTINKARA PIN-695 122. BY ADVS.SRI.THOMAS M.JACOB, SRI.AKHIL K..MADHAV, SRI.LINTO FRANCIS. ## RESPONDENT(S)/RESPONDENTS/PLAINTIFF AND DEFENDANTS AND L.R'S OF DECEASED DEFENDANTS: ------------------------------------------------------------------------------------------------ 1. VASUDEVAN BALAKRISHNAN, AGED ABOUT 72 YEARS, FATHER'S NAME NOT KNOWN, RESIDING AT TC 26/2131 STATUE ROAD, VANCHIYOOR VILLAGE, THIRUVANANTHAPURAM PIN-695 035. 2. VISWAMBHARAN VIJAYAN, AGED ABOUT 48 YEARS, FATHER'S NAME NOT KNOWN, RESIDING AT V.S.NIVAS THALAYAL DESOM, ATHIYANNOOR VILLAGE, PIN-695 123. 3. VISWAMBHARAN RADHAKRISHNAN, AGED ABOUT 46 YEARS, FATHER'S NAME NOT KNOWN, RESIDING AT V.S.NIVAS, THALAYAL DESOM, ATHIYANNOOR VILLAGE PIN-695 123. 4. VISWAMBHARAN HARIDAS, AGED ABOUT 44 YEARS, FATHER'S NAME NOT KNOWN, RESIDING AT V.S.NIVAS THALAYAL DESOM, ATHIYANNOOR VILLAGE, PIN-695 123. 5. VISWAMBHARAN SANTHOSH KUMAR, AGED ABOUT 42 YEARS, FATHER'S NAME NOT KNOWN, RESIDING AT V.S.NIVAS, THALAYAL DESOM, ATHIYANNOOR VILLAGE PIN-695 123. ..2/- OP(C).No. 2711 of 2011 (O) **-:2:-** 6. RAMAN RAMACHANDRAN, AGED ABOUT 79 YEARS, FATHER'S NAME NOT KNOWN, RESIDING AT SREENILAYAM, KEEZHKOLLA DESOM, CHENKAL VILLAGE, PIN-695 132. 7. KRISHNAMMA SANTHAKUMARI, AGED ABOUT 72 YEARS, FATHER'S NAME NOT KNOWN, RESIDING AT RAVISMRITHI, THALAYAL DESOM, ATHIYANNOOR VILLAGE PIN-695 123. 8. RAVEENDRAN SREENIVAS, AGED ABOUT 44 YEARS, FATHER'S NAME NOT KNOWN, RESIDING AT RAVISMRITHI, THALAYAL DESOM, ATHIYANNOOR VILLAGE, PIN-695 123. 9. SANTHAKUMARI JEENA, AGED ABOUT 38 YEARS, FATHER'S NAME NOT KNOWN, RESIDING AT RAVISMRITHI THALAYAL DESOM, ATHIYANNOOR VILLAGE, PIN-695 123. 10. JANAKI LEELAKUMARI, AGED ABOUT 77 YEARS, FATHER'S NAME NOT KNOWN, RESIDING AT AMLI HOME, THALAYAL DESOM, ATHIYANNOOR VILLAGE, PIN-695 123. 11. SAROJINI SULOCHANA, AGED ABOUT 61 YEARS, FATHER'S NAME NOT KNOWN, RESIDING AT VILAYIL VEEDU, HOUSE NO.900, WARD NO.11, VENJARAMOODU NELLANADU PANCHAYAT, CHIRAYINKEEZH TALUK, PIN-695606. 12. SULOCHANA JULI S.GOPINATH, AGED ABOUT 35 YEARS, FATHER'S NAME NOT KNOWN, RESIDING AT VILAYIL VEEDU, HOUSE NO.900, WARD NO.11, VENJARAMOODU, NELLANADU PANCHAYAT, CHIRAYINKEEZH TALUK, PIN-695 606. 13. PONNAMMA SANTHAKUMARI, AGED ABOUT 76 YEARS, FATHER'S NAME NOT KNOWN, RESIDING AT SANTHA BHAVAN, TC 5/154 A, PEROORKADA, THIRUVANANTHAPURAM-695 005. 14. LEKSHMI AMMA KANTHIMATHI, AGED ABOUT 70 YEARS, FATHER'S NAME NOT KNOWN, RESIDING AT THATTARUKONATHU MELE PUTHEN VEEDU, NADUVOORKOLLA DESOM, KOLLAYIL VILLAGE, PIN-695 122. 15. KANTHIMATHI DEVIKUMARI, AGED ABOUT 45 YEARS, FATHER'S NAME NOT KNOWN, RESIDING AT THATTARUKONATHU MELE PUTHEN VEEDU, NADUVOORKOLLA DESOM, KOLLAYIL VILLAGE, PIN-695 122. 16. KANTHIMATHI SANTHI, AGED ABOUT 43 YEARS, FATHER'S NAME NOT KNOWN, RESIDING AT THATTARUKONATHU MELE PUTHEN VEEDU, NADUVOORKOLLA DESOM, KOLLAYIL VILLAGE, PIN-695 122. 17. KANTHIMATHI SARASWATHY, AGED ABOUT 40 YEARS, FATHER'S NAME NOT KNOWN, RESIDING AT THATTARUKONATHU MELE PUTHEN VEEDU, NADUVOORKOLLA DESOM, KOLLAYIL VILLAGE, PIN-695 122. .....3/- OP(C).No. 2711 of 2011 (O) **-:3:-** 18. KANTHIMATHI INDIRA, AGED ABOUT 37 YEARS, FATHER'S NAME NOT KNOWN, RESIDING AT THATTARUKONATHU MELE PUTHEN VEEDU, NADUVOORKOLLA DESOM, KOLLAYIL VILLAGE PIN-695 122. 19. KRISHNAN MOHANACHANDRAN, AGED ABOUT 46 YEARS, FATHER'S NAME NOT KNOWN, RESIDING AT KUTHUPALAM VEEDU, NADUVOORKOLLA DESOM, KOLLAYIL VILLAGE PIN-695 122. 20. D.KRISHNAN, AGED ABOUT 87 YEARS, FATHER'S NAME NOT KNOWN, RESIDING AT ANANTHAVILAKATHU VEEDU, IRUMBIL DESOM, PIN-695 121. 21. KRISHNAN SAMBASIVAN, AGED ABOUT 62 YEARS, FATHER'S NAME NOT KNOWN, RESIDING AT ANANTHAVILAKATHU VEEDU, IRUMBIL DESOM PIN-695 121. 22. AMMUKKUTTY USHA, AGED ABOUT 58 YEARS, FATHER'S NAME NOT KNOWN, RESIDING AT ANANTHAVILAKATHU VEEDU, IRUMBIL DESOM, PIN-695 121. 23. AMMUKKUTTY LETHIKA, AGED ABOUT 53 YEARS, FATHER'S NAME NOT KNOWN, RESIDING AT ANANTHAVILAKATHU VEEDU, IRUMBIL DESOM, PIN-695 121. 24. KRISHNAN MANOHARAN, AGED ABOUT 52 YEARS, FATHER'S NAME NOT KNOWN, RESIDING AT ANANTHAVILAKATHU VEEDU, IRUMBIL DESOM, PIN-695 121. 25. KRISHNAN PRATHAPAN, AGED 49 YEARS, FATHER'S NAME NOT KNOWN, RESIDING AT ANANTHAVILAKATHU VEEDU, IRUMBIL DESOM, PIN-695 121. 26. KRISHNAN SANALKUMAR, AGED ABOUT 45 YEARS, FATHER'S NAME NOT KNOWN, RESIDING AT ANANTHAVILAKATHU VEEDU, IRUMBIL DESOM, PIN-695 121. 27. AMMUKUTTY THANKAM, AGED ABOUT 47 YEARS, FATHER'S NAME NOT KNOWN, RESIDING AT ANANTHAVILAKATHU VEEDU, IRUMBIL DESOM, PIN-695 121. 28. KRISHNAN VINOD, AGED ABOUT 43 YEARS, FATHER'S NAME NOT KNOWN, RESIDING AT ANANTHAVILAKATHU VEEDU, IRUMBIL DESOM, PIN-695 121. 29. MURUKESAN, AGED ABOUT 58 YEARS, FATHER'S NAME NOT KNOWN, RESIDING AT KALLASSARIVILA VEEDU, NILAMAYIL, KADAVATTARAM DESOM, NEYYATTINKARA VILLAGE, PIN-695 121. 30. VIMALAMMA USHA, AGED ABOUT 56 YEARS, FATHER'S NAME NOT KNOWN, RESIDING AT KALLASSARIVILA VEEDU, NILAMAYIL, KADAVATTARAM DESOM, NEYYATTINKARA VILLAGE, PIN-695 121. ....4/- OP(C).No. 2711 of 2011 (O) ## **-:4:-** 31. INDIRA, AGE NOT KNOWN, W/O. GOPALAN KRISHNAMOORTHY, RESIDING AT 'INDIRA', JAYA NAGAR, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-695 011. 32. DEVIPRIYA, AGE NOT KNOWN, D/O. GOPALAN KRISHNAMOORTHY, RESIDING AT 'INDIRA', JAYA NAGAR, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-695 011. 33. KRISHNAMOORTHY BIJU, AGED NOT KNOWN, S/O. GOPALAN KRISHNAMOORTHY, RESIDING AT 'INDIRA', JAYA NAGAR, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-695 011. 34. INDIRA ANJU, AGED NOT KNOWN, S/O.GOPALAN KRISHNAMOORTHY, RESIDING AT 'INDIRA', JAYA NAGAR, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-695 011. 35. SARASWATHI RAJANI, AGED NOT KNOWN, W/O. GOPALAN GOPINATHAN, RESIDING AT NO.8, THYCAUD ELENKOM RESIDENTIAL ASSOCIATION, THYCAUD P.O., THIRUVANANTHAPURAM-695 014. 36. GOPINATHAN RAJESH, AGED NOT KNOWN, S/O. GOPALAN GOPINATHAN, RESIDING AT NO.8, THYCAUD ELENKOM RESIDENTIAL ASSOCIATION, THYCAUD P.O., THIRUVANANTHAPURAM-695 014. 37. GOPINATHAN AJEESH, AGED NOT KNOWN, S/O. GOPALAN GOPINATHAN, RESIDING AT NO.8, THYCAUD ELENKOM RESIDENTIAL ASSOCIATION, THYCAUD P.O., THIRUVANANTHAPURAM-695 014. 38. RAJANI PARVATHY, AGED NOT KNOWN, D/O.GOPALAN GOPINATHAN, RESIDING AT NO.8, THYCAUD ELENKOM RESIDENTIAL ASSOCIATION, THYCAUD P.O., THIRUVANANTHAPURAM-695 014. 39. K.R.RAJENDRAN, AGED ABOUT 51 YEARS, S/O. RAMAN KRISHNAN, RESIDING AT USHAS, ARULUMOOD P.O. THIRUVANANTHAPURAM-695 123. 40. LEELA JAYADEVAN, AGED ABOUT 45 YEARS, D/O. RAMAN KRISHNAN, RESIDING AT S.J.NILAYAM, ARULUMOOD P.O., THIRUVANANTHAPURAM-695 123. 41. LEELA AMBIKAKUMARI, AGED ABOUT 43 YEARS, D/O. RAMAN KRISHNAN, RESIDING AT KUZHIVILAKATHU VEEDU, ARULUMOOD P.O., THIRUVANANTHAPURAM-695 123. 42. KRISHNAN JAYAKRISHNAN, AGED ABOUT 37 YEARS, S/O. RAMAN KRISHNAN, RESIDING AT KUZHIVILAKATHU VEEDU, ARULUMOOD P.O., THIRUVANANTHAPURAM-695 123. .......5/- OP(C).No. 2711 of 2011 (O) **-:5:-** 43. KRISHNAN JAYARAJAN, AGED ABOUT 35 YEARS, S/O. RAMAN KRISHNAN, RESIDING AT KUZHIVILAKATHU VEEDU, ARULUMOOD P.O., THIRUVANANTHAPURAM-695 123. 44. P.KAMALABAI, AGED NOT KNOWN, W/O. RAMAN GANGADHARAN, RESIDING AT SREEMANGALAM, SIVAGIRI ROAD, VARKALA P.O., PIN-695 141. 45. VIJAYAKUMAR G., AGED ABOUT 48 YEARS, S/O. LATE RAMAN GANGADHARAN, SREEMANGALAM, THOPPIL JUNCTION, MAYYANADU P.O., KOLLAM-691 303. 46. GIRIJA G., AGED NOT KNOWN, D/O.LATE RAMAN GANGADHARAN, SREEMANGALAM, SIVAGIRI ROAD, VARKALA P.O., PIN-695 141. 47. SIVAKUMAR, AGED NOT KNOWN, S/O. LATE RAMAN GANGADHARAN, SREEMANGALAM, SIVAGIRI ROAD, VARKALA P.O., PIN-695 141. 48. T.C.RAJAN, AGED NOT KNOWN, HUSBAND OF KANTHIMATHI LALITHA, RESIDING NO.8, TC 26/2156 TUTORS LANE ROAD, STATUE, THIRUVANANTHAPURAM PIN-695 001. 49. LALITHA LATHA, AGED ABOUT 53 YEARS, D/O. KANTHIMATHI LALITHA, RESIDING AT NO.8, TC 26/2156, TUTORS LANE ROAD, STATUE, THIRUVANANTHAPURAM, PIN-695 001. 50. RAJAN JAYAPPAN, AGED ABOUT 51 YEARS, S/O. KANTHIMATHI LALITHA, RESIDING AT NO.8 TC 26/2156, TUTORS LANE ROAD, STATUE, THIRUVANANTHAPURAM, PIN-695 001. 51. LALITHA GIRIJA, AGED ABOUT 43 YEARS, D/O. KANTHIMATHI LALITHA, RESIDING AT NO.8, TC 26/2156, TUTORS LANE ROAD, STATUE, THIRUVANANTHAPURAM, PIN-695 001. 52. BHASKARAN VIJAYANTHY, AGED ABOUT 65 YEARS, W/O. VASUDEVAN HARIDAS, RESIDING AT KANTHI FLATS, TUTORS LANE, STATUE, THIRUVANANTHAPURAM-695 001. 53. HARIDAS KRISHNAN, AGED ABOUT 48 YEARS, S/O. VASUDEVAN HARIDAS, RESIDING AT KANTHI FLATS, TUTORS LANE, STATUE, THIRUVANANTHAPURAM-695 001. 54. HARIDAS RASMI, AGED ABOUT 38 YEARS, D/O. VASUDEVAN HARIDAS, RESIDING AT KANTHI FLATS TUTORS LANE, STATUE, THIRUVANANTHAPURAM-695 001. 55. HARIDAS RAJAN, AGED ABOUT 40 YEARS, S/O. VASUDEVAN HARIDAS, RESIDING AT KANTHI FLATS TUTORS LANE, STATUE, THIRUVANANTHAPURAM-695 001. .....6/- OP(C).No. 2711 of 2011 (O) ## **-:6:-** R1 BY ADV. SRI.N.D.PREMACHANDRAN, R44 TO R46 BY ADV.P.B.SAHASRANAMAM, R BY ADV. SRI.L.MOHANAN. R BY ADV. SMT.LIGEY ANTONY. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 06-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 2711 of 2011 (O) ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** - **P1:TRUE TYPEWRITTEN COPY OF THE COMMON JUDGMENT DATED 11-11-1999 IN O.S. NO.56/1994 AND O.S.NO.67/1995 IN THE FILES OF SUB COURT, NEYYATTINKARA.** - **P2:TRUE COPY OF CERTIFIED COPY OF I.A.NO.1281/2004 IN O.S. NO.67/1995 TO SET ASIDE EXPARTE DECREE.** - **P3:TRUE COPY OF THE CERTIFIED COPY OF I.A.NO.1280/2004 IN O.S.NO.67/1995 TO CONDONE THE DELAY.** - **P4:TRUE COPY OF ORDER DATED 07-07-2005 IN I.A.NO.4372/2004 IN RFA NO.360/2003 OF THIS HONOURABLE COURT.** - **P5:TRUE COPY OR ORDER DATED 08-10-2004 IN I.A. NO.1281/2004 IN O.S.NO.67/1995.** - **P6:TRUE COPY OF ORDER DATED 08-10-2004 IN I.A. NO.1280/2004.** ## **RESPONDENTS' EXHIBITS:- NIL.** //TRUE COPY// **P.A. TO JUDGE** 'C.R' ## **THOTTATHIL B. RADHAKRISHNAN & A.V.RAMAKRISHNA PILLAI, JJ.** = = = = = = = = = = = = = = = = = = = = O.P(C) No.2711 of 2011 = = = = = = = = = = = = = = = = = = = = Dated this the 6[th] day of December, 2012 ## **J U D G M E N T** ## **Thottathil B. Radhakrishnan, J.** Defendants 26 and 27 in a suit to set aside a document and for partition are the appellants. They were impleaded by the plaintiff on the allegation that they were assignees of the third defendant. When the suit was decreed ex parte, they applied to have ex parte decree set aside. They also sought condonation of delay in making such application. It is true, as rightly pointed out by the learned counsel for the plaintiff, that the delay in applying to set aside the ex parte decree is more than 1700 days. 2. However, the fact of the matter remains that the present grievance of defendants 26 and 27 who have filed this original petition invoking Article 227 of the Constitution is that they were, in fact, not heard in relation to the applications seeking condonation of delay and to have ex parte decree set aside. They plead that after a long lapse of time, they see that their applications were dismissed as “withdrawn”. The certified copies of the applications to set aside the ex parte decree and for condonation of delay _**-:2:-**_ OP(C).2711/11 do not contain any endorsement that those applications are “withdrawn”. Not only that, in the case in hand, going through the records, we see that there are serious allegations even against members of the bar, particularly, in the context of the fact that many of the parties to this litigation are themselves advocates. 3. The learned counsel for the petitioners (defendants 26 and 27) made reference to Circular No.28/68 and the judgment of this Court in **Kannan v. Lakshmi** (1970 K.L.T 731) wherein, Justice V.R.Krishna Iyer, as he then was, noted that, that case was an instance which illustrates mischiefs, contemplated in the aforesaid Circular meant for guidance of the subordinate courts when admissions or concessions were made by advocates during the course of proceedings. 4. Be that as it may, we proceed to consider certain other relevant legal issues. 5. Section 141 of the Code of Civil Procedure, 1908, for short, the 'Code', provides that the procedure provided in the Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any court of civil jurisdiction. The application under Order IX Rule 13 and application under section 5 of the Limitation Act in relation to the application _**-:3:-**_ OP(C).2711/11 to set aside the ex parte decree are proceedings which fall within the ambit of section 141 CPC. Reverting to Order XXIII Rule 1, it is the requirement of law that abandonment or withdrawal of any claim (in this case, the relief of having ex parte decree set aside after condoning the delay to apply for such relief) could have been done only with notice to the other parties. In the context of Order XXIII Rule 1, it is apposite to refer to Rule 148 of Civil Rules of Practice, Kerala, which enjoins that notice of an application for leave to withdraw from a suit, shall be given to all parties who have appealed. The essence of these provisions is that withdrawal of an application from a court is not an empty formality. It has also to be remembered that the consequences that follow from withdrawal or abandonment, with or without leave, have classic importance; may be, even with disastrous consequences; including of being deprived of a right to sue. 6. With the aforesaid in mind, examining the matters on record as already noted, there is nothing to show that the withdrawal was as authorised by defendants 26 and 27. Their applications, which stand dismissed as withdrawn, were eligible to be proceeded with on their merits. The impugned orders result in manifest miscarriage of justice and they deserve to be set aside to pave way to justice in accordance with law. _**-:4:-**_ OP(C).2711/11 In the result, the impugned Exts.P5 and P6 are quashed and the court below is directed to take up the applications on which those orders were passed; proceed with those applications, giving opportunity to all parties concerned and decide on those applications, in accordance with law. We have not expressed anything on the grounds or defence as regards the application under Order IX Rule 13 CPC or the one filed along with that in terms of section 5 of the Limitation Act. The original petition is allowed accordingly, leaving open all other issues. sd/- **THOTTATHIL B. RADHAKRISHNAN JUDGE** sd/- **A.V.RAMAKRISHNA PILLAI JUDGE** krj.7/12