P. Indira Devi and others v. K.K. Sasidharan and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **WEDNESDAY, THE 8TH DAY OF AUGUST 2018 / 17TH SRAVANA, 1940** **OP(C).No. 939 of 2013(O) ------------------------** **AGAINST THE ORDER/JUDGMENT IN IA.11425/2005 IN OS 1111/1996 of PRL.M.C.,ERNAKULAM** **PETITIONER(S):** **--------------** **1 P.INDIRA DEVI W/O.LATE M.S MENON, RESIDING AT KIZHAKKEPOORATHIL, INDIRA NIVAS,VATTEKUNNAM, THRIKKAKKARA NORTH VILLAGE KANAYANNUR TALUK.** ## **2 MAHESH KUMAR** **S/O.LATE M.S MENON -DO -DO-** **3 RADHAKRISHNAN** **S/O.LATE M.S MENON -DO-DO** ## **4 MANGALA KUMAR** **S/O.LATE M.S SOMAN -DO- -DO-** **BY ADVS.SRI.VARGHESE C.KURIAKOSE** **SMT.RENJINI RAJENDRAN** **SRI.G.MANU KRISHNAN** ## **RESPONDENT(S):** - **-------------** **1. K.K.SASIDHARAN S/O.KARUNAKARAN PILLAI, GEETHANJALI, VATTEKKUNNAM EDAPPALLY NORTH P.O., KOCHI 24.** ## **2. GEETHA** **W/O.K.K.SASIDHARAN, RESIDING AT GEETHANJALI, VATTEKUNNAM EDAPPALLY NORTH P.O., KOCHI 24.** **3. P.K.JAYASANKARA PILLAI** **S/O.VASIUDEVA PILLAI, MATHASSERRIL HOUSE, SOUTH CHITTIOOR P.O, KOCHI 27.** **OP(C).No. 939 of 2013(O) ------------------------** **2** ## **4. SINDHU MENON** **W/O.LATE GIRIJA KUMAR, HOUSE NO 1, ANJALI SANTHI NAGAR HOUSING COLONY, RAJAGIRI P.O., KALAMASSERRY SOUTH.** ## **5. SARANGA MENON** - **S/O.LATE GIRIJA KUMAR, HOUSE NO 1, ANJALI, SANTHI NAGAR HOUSING COLONY, RAJAGIRI P.O., KALAMASSERRY SOUTH.** ## **6. SARANYA MENON** - **D/O.LATE GIRIJA KUMAR & SINDHU G.MENON** - **-DO- -DO-** ## **7. AJITHA DEVI** - **D/O.LATE M.S MENON, RESIDING AT KIZHAKKEPOORATHIL, INDIRA NIVAS, VATTEKUNNAM, THRIKKAKKARA NORTH VILLAGE KANAYANNUR TALUK.** **8. REMA DEVI D/O.M.S MENON** - **-DO- -DO-** **9. VASANTHI D/O.LATE M.S MENON** - **-DO- -DO-** ## **10. MADHURAJAN** - **S/O.LATE MENON** - **-DO- -DO-** **R1-R3 BY ADV. SMT.BOBY M.SEKHAR R1-R3 BY ADV. SMT.REJITHA RAJAN** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 11-07-2018, THE COURT ON 08-08-2018 DELIVERED THE FOLLOWING:** ## **OP(C).No. 939 of 2013(O) ------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** ## **-----------------------** **EXHIBIT P1 COPY OF THE ORDER IN O.S.NO.1111/1996 ON THE FILES OF THE PRI.MUNSIFF'S COURT, ERNAKULAM.** **EXHIBIT P2 COPY OF THE ORDER DATED 20.08.2011 IN CMA.30/2007 BY THE 1ST ADDL.DISTRICT JUDGE** ## **RESPONDENT(S)' EXHIBITS:** **-----------------------** **EXHIBIT R1(A) COPY OF I.A.1055/2009 IN CMA 30/2007 DATED 23.01.2009 EXHIBIT R1(B) COPY OF THE IA.1179/2015 IN CMA 29/2007 DATED 12.03.2015.** **/TRUE COPY/** **PA TO JUDGE** _**dkr**_ ## ASHOK MENON, J. ------------------------------------------O.P.(C) No. 939 of 2013 ------------------------------------------Dated this the 8[th] day of August, 2018 ## J U D G M E N T O.S.No.1111/1996 on the file of Principal Munsiff, Ernakulam, is for a perpetual injunction filed by the petitioners herein and another O.S.No.1978/1997 is filed for fixation of northern boundary of paint schedule property. Both the suits were posted for trial. The plaintiffs were absent on 10.11.2005. On request of the counsel, the suits were adjourned to 14.11.2005 for recording evidence. On that date, the Counsel submitted that he has relinquished the vakalath. One of the plaintiff, who is contesting the case, was present and sought another adjournment and it was granted and posted to 15.11.2005 on payment of cost of Rs.1,000/-, which was paid. On that date, the plaintiff sought yet another adjournment on the ground of not being able to engage a lawyer and the suit was again adjourned to 23.11.2005. He sought a fortnight to entrust the matter to a lawyer stating that the lawyers were reluctant to take up the file at such short notice. Further adjournment was, _OP(C) 939/2013_ 2 however, denied by the Court and the suits were dismissed. In the meanwhile, the respondents 1 and 5 were reported dead. No steps were taken to implead the legal representatives as they were not found to be necessary parties by the petitioners. 2. The plaintiffs filed two petitions for restoration of suits, which were both taken up together, since the suits were being tried jointly. The respondents/defendants in the suits raised serious objections regarding the intention of the plaintiffs stating that the only motive was to protract the litigation. The suits were filed in the year 1996 and 1997 and joint trial was allowed in 1997. A Commissioner was deputed in 2000. But due to the non-cooperation of the plaintiffs, the Commissioner could not complete the inspection and the report was filed only on 22.07.2005. No objection was filed, though opportunities were granted. Steps were taken in time. The suits were included in the special list for trial on 10.11.2005 and as stated earlier, it was adjourned continuously for one reason or other. Ultimately, the Court dismissed the suits. Restoration of suits was seriously objected by the defendants. _OP(C) 939/2013_ 3 3. Oral evidence was adduced in the petitions, and one of the petitioners was examined as PW1 and Exts.A1 and A2 were marked and on the side of the respondents Ext.B1 was marked. After considering the facts and evidence in detail, the Court observed that one of the reasons mentioned for adjournment was that the close relative of the petitioners had passed away on 10.11.2005 and for that reason, they could neither contact the Counsel nor appear in person on the date the suit was posted for trial in the special list. In support of this contention, Ext.A1 is produced. There are 9 plaintiffs in the suits, out of which, two plaintiffs are no more. The learned Munsiff observed that at least one of the plaintiffs could have appear on the date the suits were listed for trial. The reason for adjournment is stated to be the death of a near relative. But the name of the relative is not mentioned in the affidavit or the petition. Ext.A1 is an obituary news. None of the plaintiffs are mentioned as relative of the deceased person, which according to the learned Munsiff indicates that the person was not a close relative so as to dispense with the appearance of the plaintiffs on the date of the trial. Nevertheless, the suits were _OP(C) 939/2013_ 4 adjourned first to 14.11.2005, when one of the plaintiffs was present, but the counsel relinquished the vakalath in one of the cases. Time was granted for engaging another counsel till 17.11.2005. Cost was paid for the adjournment, but still counsel could not be engaged. Yet another adjournment was granted till 23.11.2005 as last chance and the petitioners failed again. It is also pointed by the respondents that Ext.B1 objection to the inspection report was filed by the counsel, who relinquished the vakalath and that the affidavit was prepared on 11.11.2005, the date on which the suits were listed for trial. The learned Munsiff observed that if the counsel had intention to relinquish the vakalath, he would not have presented Ext.B1 objection on 16.11.2005. In fact, the Counsel had not relinquished his vakalath till the suits were dismissed for default. The learned Munsiff would point out that this fact by itself would indicate that the intention of the petitioners was only to protract the matter. The learned Munsiff has also taken exception to the non-co-operation of the plaintiffs in carrying out the inspection by the commissioner for about 5 years till the report was ultimately filed on 22.07.2005. Taking the nature of the _OP(C) 939/2013_ 5 plaintiffs' approach to the suits, the learned Munsiff concluded that there is no justification for restoration of the suits, since there was willful laches on the part of the plaintiffs in conducting the suits. The grounds stated were found to be sufficient and the finally the suits were dismissed. The petitioners appealed before the District Court challenging the impugned order at Ext.P1 as C.M.A.No.30/2007. The learned District Judge observed that the plaintiffs had deliberately protracted the litigation for 9 years for one reason or other. One suit, O.S.No.1111/1996, was filed for injunction to restrain the defendants from trespassing into the plaint schedule property or from putting up new fence or compound wall therein and the second suit, O.S.No.1978/1997 was filed for fixation of the northern boundary of the property. It is also observed that the plaintiffs have chosen to file appeal only against the order in I.A.No.11425/2005 in O.S.No.1111/1996 and did not file appeal against the order in the second I.A.No.11426/2005 to restore O.S.No.1978/1997. The learned District Judge observed that going by the contention of the plaintiffs, it would indicate that there was deliberate attempt on their part to protract the _OP(C) 939/2013_ 6 proceedings by one reason or other and therefore justified the findings of the learned Munsiff in dismissing the applications. Challenging the order in C.M.A.No.30/2007 that the plaintiffspetitioners are before this Court. 4. Both sides were heard. The learned Counsel for the respondents relies on the decision of this Court in Sajitha Kumari v. Prajith, 2017 (1) KHC 48 , wherein it is held as thus,- “It is settled law that the Court must be liberal in considering the application under Order IX R.9 and Order IX R.13 and if there is substantial issue to be considered, then, the Court should allow the parties to meet the case on merit. Even if there is any laches, that can be compensated by ordering cost. This Court while restoring the application allowed payment of Rs.7,000/as cost and Court below also now ordered cost of Rs.5,000/- for allowing the application to set aside the ex parte decree after condoning the delay in filing the application. So considering the circumstances and also the reasons stated by the Court below, it cannot be said that the Court below had committed any illegality or impropriety in passing the order warranting interference invoking the revisional jurisdiction. So the revision lacks merit and the same is liable to be dismissed in limine.” 5. There is no doubt that usually the Courts take a lenient view in applications filed under Order IX, Rule 13. But it is pertinent to note that in order to allow the restoration of the suit either by setting aside the exparte decree or by restoration of the suit _OP(C) 939/2013_ 7 dismissed for default of the plaintiffs, what is to be borne in mind is the conduct of the parties in conducting the litigation and the reasons supplied for the absence or delay. In the instance case, there are two suits, first one filed in 1996 and the second one filed in 1997. The first suit is for injunction and the second suit is for fixation of boundary. Both the suits were ordered to be tried jointly. The suits had come up for trial after 9 years. Being a simple suit for fixation of boundary and prohibitory injunction, there are no serious contention to be settled or legal issues to be resolved. The Commissioner himself could file the report only after 5 years, allegedly due to the non-co-operation of the plaintiffs. It has to be borne in mind that in a suit for injunction against alleged trespass, nothing has happened despite the fact that the suit was pending for the last more than 20 years. Quietus to litigation is essential at some point of time. It is not the delay, but the contumacious conduct of the parties, which is pertinent. Going by the conduct of the petitioners, it is adequately clear that there was recalcitrant and contumacious conduct concerning the litigation on the part of the petitioners. The learned Munsiff had, in detail, stated about the _OP(C) 939/2013_ 8 number of adjournments which were granted and the way the petitioners contested the case. There is a docket explosion in the Country, because of such irresponsible and contumacious conduct of the litigants, who are more interested in protracting the litigation than getting it resolved. The petitioners were imposed with the liability to pay cost for adjournment, which also paid. But still there was willful laches on their part in proceeding with the litigation. Such dilatory tactics to protract the litigation has definitely to be put down with a heavy hand. Litigations are for resolving serious disputes between the parties and not for persons, who want to use it as a sword of Damocles over the opposite parties in perpetuity. It is difficult to believe that the petitioners were not able to find a counsel, despite being at litigation for almost a decade. I find no reason to interfere with the impugned orders of the learned District Judge in confirming the order of dismissal of the petitions to restore suits by the learned Munsiff. It is also pertinent to note that the petitioners have not chosen to challenge the dismissal in O.S.No.1978/1997. It is only the injunction suit which they intend to be restored. For reasons stated by me earlier, the suit need not _OP(C) 939/2013_ 9 be brought back to the file. The concurrent findings of the court below need no interference. Hence, the Original Petition is dismissed. No order as to costs. Sd/ASHOK MENON Judge dkr