Sara Ammad v. Thazhe Chembottukandey Thamasikkum Chalil Basheer; Thazhe Chembottukandy Kunhabdulla Haji; Thazhe Chembottukandy Shafeeq; Thazhe Chembottukandy Abbas; Neelamchira Ayissu

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 24TH DAY OF JANUARY 2018 / 4TH MAGHA, 1939** **OP(C).No. 195 of 2018** **--------------OS 133/2015 OF MUNSIFF'S COURT, NADAPURAM --------------** **PETITIONER ---------------** **SARA AMMAD., S/O.KUNHABDULLA,AGED 48 YEARS,SWASTHAM,THAZHE CHEMBOOTTUKANDEY HOUSE,VELLOOR AMSOM,PERODE AMSOM, VATAKARA TALUK,KOZHIKODE DISTRICT,KERALA STATE.** **BY ADV.SRI.K.P.HAREENDRAN** ## **RESPONDENTS:** - **------------------** **1. THAZHE CHEMBOOTTUKANDEY THAMASIKKUM CHALIL BASHEER, S/O.KUNHABDULLA HAJI,AGED 49 YEARS,WORKING AT DUBAI, VELLOOR AMSOM,PERODE DESOM,VATAKARA TALUK,KOZHIKODE DISTRICT, KERALA STATE-673504.** **2. THAZHE CHEMBOTTUKANDY KUNHABDULLA HAJI, S/O.MOIDEEN,AGED 70 YEARS, SWASTHAM,THAZHE CHEMBOOTTUKANDEY HOUSE,VELLOOR AMSOM,PERODE AMSOM, VATAKARA TALUK,KOZHIKODE DISTRICT,KERALA STATE-673504.** **3. THAZHE CHEMBOTTUKANDY SHAFEEQ,** - **S/O.KUNHADBULLA HAJI,AGED 25 YEARS,WORKING AT ABROAD, THAZHE CHEMBOTTUKANDY HOUSE,VELLOOR AMSOM,PERODE AMSOM,** **VATAKARA TALUK,KOZHIKODE DISTRICT.KERALA STATE -673504.** ## **OP(C).No. 195 of 2018 (O)** **----------------------------** ## **4. THAZHE CHEMBOTTUKANDY ABBAS,** **S/O.KUNHABDULLA HAJI,AGED 35 YEARS,WORKING AT ABROAD, THAZHE CHEMBOTTUKANDY HOUSE,VELLOR AMSOM,PERODE DESOM, VATAKARA TALUK,KOZHIKODE DISTRICT,KERALA STATE-673504.** ## **5. NEELAMCHIRA AYISSU,** **D/O.AMMAD,AGED 62 YEARS,SWASTHAM, NEELAMCHIRA HOUSE, VELLOOR AMSOM,PERODE AMSOM,VATAKARA TALUK, KOZHIKODE DISTRICT,KERALA STATE-673504.** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 24-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sdr/-** ## **OP(C).No. 195 of 2018 (O)** ## **----------------------------** ## **APPENDIX** **-------------** ## **PETITIONER(S)' EXHIBITS** **--------------------------------** **EXHIBIT P1 CERTIFIED COPY OF THE JUDGMENT DATED 18/03/2016 MADE IN O.S.133 OF 2015 BY THE HON'BLE MUNSIFF,NADAPURAM. EXHIBIT P2 CERTIFIED COPY OF THE COMMON ORDER IN I.A.567 OF 2016 AND 568 OF 2016 IN O.S.133 OF 2015 BY THE HON'BLE MUNSIFF,NADAPURAM EXHIBIT P3 CERTIFIED COPY OF THE COMMON ORDER IN I.A.569 OF 2016 AND I.A.570 OF 2016 IN O.S.NO.133 OF 2015 ON 31/10/2016 BY THE HON'BLE MUNSIFF,NADAPURAM. EXHIBIT P4 CERTIFIED COPY OF THE COMMON JUDGMENT DATED 20/11/2017 PASSED BY THE SUBORDINATE JUDGE,VATAKARA,ALLOWING C.M.A.NOS.12 OF 2016 AND 13 OF 2016.** **RESPONDENTS EXHIBITS NIL ---------------------/TRUE COPY/ PA TO JUDGE** **sdr/-** ## **ALEXANDER THOMAS, J.** ------------------------------------------- O.P. (C.).No.195 of 2018 ---------------------------------------------Dated this the 24[th] day of January, 2018 ## **JUDGMENT** The prayers in this Original Petition (Civil) filed under the enabling provisions contained in Article 227 of the Constitution of India are as follows: “a) Call for the entire records from the Munsiff Court, Nadapuram relating to Exhibits:P1 to P3 and set aside the Order Ext.P4; b) An ordder to stay all proceedings in O.S.No.133 of 2015 on the file of the Munsiff's Court, Nadapuram till the disposal of O.P.(C).” 2. Heard Sri. K.P. Hareendran, learned counsel appearing for the petitioner/plaintiff. 3. In the nature of the orders proposed to be passed in this Original Petition (Civil), notice to the respondents/defendants will stand dispensed with. 4. The petitioner is the plaintiff in O.S.No.133 of 2015 on the file of Munsiff Court, Nadapuram, in which the respondents herein have been arrayed as defendants therein. The suit is filed for mandatory injunction so as to direct the defendants to restore the water chal on the south and west of the plaint schedule property in its original position and if not done by the defendants, allowing the plaintiff to do the work and to realise an amount of Rs.10,000/- from the defendants and also for a permanent prohibitory injunction restraining the defendants from obstructing the flow of water etc. Defendants 1 and 3/respondents 1 and 3 herein were set ex parte in the suit. The impugned Ext.P1 judgment and decree was rendered by O.P.(C)No.195/2018 2 the trial court on 18.3.2016. Thereafter, the ex parte defendants 1 and 3 had filed applications before the trial court to condone delay of 103 days in filing the application to set aside the ex parte decree and also the application to set aside the impugned ex parte decree. Those applications were dismissed by the trial court as per Ext.P3 common impugned order dated 31.10.2016. Aggrieved thereby, defendants 1 and 3 had filed Civil Miscellaneous Applications, C.M.A.Nos.12 & 13 of 2016 respectively before the Subordinate Judge's Court, Vatakara. After hearing both sides, the lower appellate court has passed the impugned Ext.P4 common judgment dated 20.11.2017, allowing the said applications to condone the delay and to set aside the impugned ex parte decree rendered on 18.3.2016. It is this common judgment of the lower appellate court Ext.P4 is under challenge in this Original Petition (Civil). 5. On a perusal of the pleadings and materials on record, it is seen that the lower appellate court, as per the impugned judgment, has bestowed due and proper consideration for the matters in issue before that court and has found that the opinion made by the trial court that the suit need not be reopened as no new contentions or no new evidence is seen available with the petitioner, etc., are legally wrong and untenable. The lower appellate court found that no materials were before the trial court to arrive at such a finding against the defendants. The lower appellate court is right in holding that O.P.(C)No.195/2018 3 merely because the defendants in the suit are close relatives, it cannot be automatically concluded that all of them would have same or similar contentions in the suit and the present applicants/defendants would not be able to bring in any new evidence in support of their case. Further, it was also found by the lower appellate court that mere fact that some of the defendants have appeared and contested the suit and a decree & a judgment have been passed on merits, is no ground to say that there was substantial representation for the present appellants in the suit as the 2[nd] defendant happened to be the father of 1[st] and 4[th] defendants etc. The lower appellate court cannot be found fault with for having arrived at the conclusion that the said impugned findings of the trial court in Ext.P3 order are untenable and unsustainable. It has also to be kept in mind that defendats 1 and 3 are living separately and they are employed in the Gulf country, which can be seen from the cause-title itself. The delay was only for 103 days. Further, the appellate court also found that if the decree is set aside only with respect to D1 and D3, there would be chance for inconsistent and different decisions in the suit as against the defendants and that in this view of the matter, the lower appellate court also found that it would be proper to set aside the decree as against the defendants so as to have a fresh trial subject to the evidence with respect to D2, D4 and D5 limiting the scope of trial granting right to adduce evidence only for defendants 1 and 3 (the appellants herein). These findings and O.P.(C)No.195/2018 4 reasonings rendered by the lower appellate court as per the impugned judgment cannot be said to be tainted by gross illegality or manifest perversity. 6. Sri. K.P. Hareendran, the learned counsel appearing for the petitioner/plaintiff would point out that each of defendants 1 and 3 have filed only one civil miscellaneous appeal each in respect of delay condonation as well as the application to set aside the impugned ex parte decree, to respectively challenge Ext.P2 common order at the instance of D1 and Ext.P3 common order at the instance of D3 and that the said procedure in permitting a single appeal to challenge the said common order is not correct and proper. The lower appellate court has found in paragraph 12 of the impugned judgment that the appellants have filed a single appeal against both orders paying court fee with respect to reliefs in both applications. The Division Bench of this Court in the judgment in _**Abdul Nazer**_ v. _**Lakshmana Das**_ reported in _**2016 (3) KLT 450**_ has held that a single memorandum of Regular First Appeal is maintainable against the decree passed in the suit and in the counter claim. The objection of the Registry in that reported case to the effect that a single memorandum of Regular First Appeal is not maintainable against the decree passed in the suit and in the counter claim was overruled by the Division Bench in _Abdul Nazer's case (supra)_ . The dictum laid down by the Division Bench of this Court in the above said decision in _**Abdul Nazer's case (supra)**_ O.P.(C)No.195/2018 5 could be befittingly applied to the facts of this case, though the matter concerned in this case is not with respect to the Regular First Appeal, but Civil Miscellaneous Appeals filed under Order 43 Rule Civil Procedure Code. The petitioner has no case that the said finding made by the lower appellate court in paragraph 12 of the impugned judgment Ext.P4 that the appellants have paid court fee with respect to the reliefs in both applications concerned is in any manner wrong or incorrect. In the light of all these aspects, this court is not inclined to accept the above said contentions made by Sri. K.P.Hareendran, learned counsel appearing for the petitioner/plaintiff. In the light of all these aspects, this Court is of the view that the impugned judgment rendered by the lower appellate court in the above said two Civil Miscellaneous Appeals cannot be said to be vitiated by any serious illegality or manifest perversity. 7. Sri. K.P. Hareendran, learned counsel for the petitioner would express an apprehension that defendants 1 and 3 would prevent the water chal throughout the western and southern boundary of the plaint schedule property, which would seriously affect the plaintiff in as much as due to the action of the defendants, it has prevented flowing of water in the chal and it has led to the overflowing of water to the courtyard of the petitioner/plaintiff etc. Accordingly, it is urged by Sri. K.P. Hareendran, learned counsel for the petitioner that this court may place strict time limit to the trial court for the expeditious O.P.(C)No.195/2018 6 disposal of the suit and also to grant necessary permission to the petitioner to file an appropriate interlocutory application seeking interim mandatory/prohibitory injunction, to tide over the situation faced by the petitioner and more so, in particularly, in view of the fact that the monsoon of this year may commence by the third week of May 2018. 8. Taking note of all these submissions, it is ordered in the interest of justice that the trial court concerned (Munsiff Court, Nadapuram) will take all reasonable measures to ensure that the trial in O.S.No.133 of 2016 is expedited and the said suit is disposed of without much delay preferably before the closure of the civil court for summer vacation 2018 or at lest before the end of May 2018. The trial court will, on an application that may be moved by the petitioner with notice to the Advocate concerned , advance the matter and render the strict direction to defendants 1 and 3 to file written statement without further delay and the trial court will not permit those parties to unnecessarily drag or protract the proceedings. The petitioner will also at liberty to file an appropriate interlocutory application seeking relief for interim mandatory injunction, if the facts so warrant. If such application is filed, the said application should also be duly considered and orders passed thereon by the trial court, after hearing all parties concerned without much delay, taking note of the facts and circumstances of the case. The petitioner will produce a certified copy O.P.(C)No.195/2018 7 of this judgment before the trial court concerned, for necessary information. The petitioner's counsel will also serve copy of this judgment to the Advocates appearing for the defendants before the court below, for necessary information. With these observations and directions, the above Original Petition (Civil) will stand finally disposed of. ## **ALEXANDER THOMAS, JUDGE.** acd