Santhamma v. Geetha; Anil Kumar; Lekha

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 18[TH] DAY OF JULY 2022 / 27TH ASHADHA, 1944** **F.A.O.NO. 148 OF 2019** **AGAINST THE ORDER DATED 06.04.2019 IN I.A.NOS.396 AND 397 OF 2017 IN O.S.NO.39 OF 2014 OF THE SUB COURT, KARUNAGAPPALLY** ## **APPELLANT/PETITIONER/PLAINTIFF:** **SANTHAMMA,** **AGED 79 YEARS, D/O. GOWRI, THADATHIL VEEDU, KOMALAMKUNNU, PUNALUR P.O, KOLLAM DISTRICT.** **BY ADVS. GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.P.J.JOE PAUL SRI.RAJAN G. GEORGE** ## **RESPONDENTS/COUNTER PETITIONERS 1 TO 3/DEFENDANTS 1 TO 3:** **1 GEETHA AGED 60 YEARS, D/O. GOPINADHAN, NADUVILANGADU THODIYIL VEETTIL, PUNALUR VILLAGE, KUNNATHOOR TALUK-691 305. 2 ANILKUMAR, AGED 58 YEARS, S/O. GOPINADHAN, NADUVILANGADU THODIYIL VEETTIL, PUNALUR VILLAGE, KUNNATHOOR TALUK-691 305.** 2 F.A.O.No.148 of 2019 **3 LEKHA, AGED 55 YEARS, D/O. GOPINADHAN, NADUVILANGADU THODIYIL VEETTIL, PUNALUR VILLAGE, KUNNATHOOR TALUK-691 305.** **(RESPONDENTS 1 AND 3 ARE REPRESENTED BY THEIR POWER OF ATTORNEY 2ND RESPONDENT IN THE COURT BELOW)** **BY ADV SRI.SAJU J PANICKER** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR FINAL HEARING ON 18.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 F.A.O.No.148 of 2019 ## **JUDGMENT** ## Ajithkumar, J. This is an appeal filed under Order XLIII, Rule 1(d) of the Code of Civil Procedure, 1908. I.A.Nos.396 and 397 of 2017 filed by the appellant, plaintiff to restore on file O.S.No.39 of 2014 of the Sub Court, Karunagappally, were dismissed. This appeal has been filed challenging the said order. 2. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents. 3. O.S.No.39 of 2014 was filed by the appellant seeking a decree of partition. The suit was contested by the respondents by filing a written statement. It was listed for trial on 03.07.2015 but adjourned to 07.07.2015. On that day, the appellant could not appear before the court due to illness. Therefore, an application on behalf of the appellant was filed along with a certificate issued from the Taluk Headquarters Hospital, Punalur, seeking to remove the case 4 F.A.O.No.148 of 2019 from the list. That petition was dismissed. A review petition was filed by the appellant as I.A.No.825 of 2005, which was also dismissed. Ultimately, the suit was dismissed for default on 20.07.2015. 4. The appellant was constrained to go to Gulf on 05.07.2015 since she had to take treatment. Her daughter was staying there, and therefore, she went to Gulf. After coming back also she was suffering from illness, and therefore, she could not file the application to set aside the exparte decree on time and there occurred a delay of 790 days. I.A.No.396 of 2017 was filed for restoring the suit on file and I.A.No.397 of 2017 was filed for condoning the delay. 5. The respondents resisted both applications by filing counter. It was contended that the appellant not only had filed an application to postpone the hearing of the case; but also filed a commission application for survey and demarcation of the properties. Even before that the appellant went abroad. She went abroad not to take any treatment. Without disclosing that fact, she filed the applications. Within three 5 F.A.O.No.148 of 2019 months she came back. But she did not soon file the application to set aside the exparte decree. It is incorrect that she was not able to come to Karunagappally during that period. She had filed several applications in courts at Punalur, where she had other litigations during the said period. Accordingly, the respondents contended that there was no sufficient reason for condonation of delay or to set aside the exparte decree. 6. After recording the evidence of the appellant as PW1 and the 2[nd] respondent as DW1, the learned Sub Judge proceeded to dismiss both the applications. It was found that the reasons stated by the appellant were not sufficient to condone the delay. 7. The learned counsel appearing for the appellant would submit that O.S.No.39 of 2014 was pending before the Sub Court, Karunagappally, which is more than 50 kilometers away from the place of residence of the appellant and as she was suffering from illness, she could not travel to Karunagappally to attend the court during the relevant period. While PW1 stated 6 F.A.O.No.148 of 2019 that there was inability for her to attend court, DW1 deposed that the appellant did not have any such ailment. Exts.B1 to B4 were produced by the respondents in order to show that the appellant had filed many applications before the courts at Punalur during the relevant period. The appellant clarified that all those petitions were signed by her at Punalur only and she really was unable to travel to Karunagappally during that period. No certificate showing the medical condition of the appellant was produced. While submitting I.A.No.770 of 2015 seeking to remove the case from the special list, and grant an adjournment, a medical certificate was produced by the appellant. It is admitted by her that she travelled during the said period to Gulf and came back. From the said facts and circumstances, it is difficult to say that the appellant was totally disabled from travelling at all. However, considering the nature of the suit that it is one for partition and the appellant had to go abroad when the suit was scheduled for trial, a lenient view in the matter of condonation of delay is required. 8. This Court in **M.Shivananda v. M.Susheela and** 7 F.A.O.No.148 of 2019 ## **others [2021 (5) KHC 357]** this held: “18. Therefore, the bar under Order IX Rule 9 of the Code does not apply in a suit for partition, since the right to enforce partition is a legal incident of a joint tenancy, and as long as such tenancy subsists, any of the joint tenants may sue for partition of the joint property. The above principle is supported by the decisions in **Kannikandath Kizhe Purakkal Velia's son, Thayyan [AIR 1935 Mad 458]** and **Babu [1978 (1) KLT 174]** . 20. xxxxxxx When the bar under Order IX, Rule 9 of the Code cannot operate in respect of suits for partition, where a continuing cause of action on the status of jointness as between the plaintiffs and defendants can be predicated as the basis for the recurring cause of action, the court below went wrong in dismissing I.A.No.163 of 2005, for the reasons stated in the order dated 24.02.2007. If the court below was not fully satisfied that there was sufficient cause for the absence of the plaintiffs, instead of dismissing the application for restoration, it could have imposed a reasonable cost on the plaintiffs and decided the lis on merits.” 9. In the light of the proposition of law laid in the aforesaid decision, we deem it appropriate to afford an opportunity to the appellant to get her suit decided on merits. While doing so, the inconvenience caused to the respondents 8 ## F.A.O.No.148 of 2019 needs to be adequately compensated. In the circumstances, we are of the view that this appeal can be allowed on the condition of payment of cost of Rs.10,000/- to the respondents. 10. Hence, the appeal is allowed. The order dated 06.04.2019 in I.A.Nos.396 and 397 of 2017 in O.S.No.39 of 2014 are set aside on the condition of payment of cost of Rs.10,000/- (Rupees ten thousand only) by the appellant to the respondents, within a period of one month from today. On such payment, the Sub Court, Karunagappaly will restore O.S.No.39 of 2014 on file. The Sub Court, Karunagappally, will take all endeavour to dispose of the suit, as expeditiously as possible, at any rate, within a period of six months from the date of restoration of the suit on file. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr