VELLAKKATTU KUNHAHAMMED KUTTY (DECEASED) AND OTHERS v. K.N.KARUPPAN (DECEASED) AND OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **TUESDAY, THE 12[TH] DAY OF DECEMBER 2023 / 21ST AGRAHAYANA, 1945 RFA NO. 435 OF 2007** ## **AGAINST THE ORDER/JUDGMENT OS 460/2004 OF SUB JUDGE, KOZHIKODE APPELLANT/S:** - 1 VELLAKKATTU KUNHAHAMMED KUTTY (DIED) AGED 1 YEARS S/O MUHAMMED HAMZA, ABAYAM P.O.,, PUKAYIL, TIRUR AMSOM DESOM,, MALAPPURAM. - 2 ATHIKKAL AYISHAKUTTY, AGED 64 YEARS, W/O V, KUNHAHAMMED KUTTY, RESIDING AT VELLAKKAT, ABHAYAM, P.O. POOKAYIL, TIRUR, MALAPPURAM- 676107 - 3 MOHAMMED KASIM, AGED 45 YEARS S/O V, KUNHAHAMMED KUTTY, RESIDING AT VELLAKKAT, ABHAYAM, P.O. POOKAYIL, TIRUR, MALAPPURAM-676107 - 4 HABEEB REHIMAN , AGED 42 YEARS S/O V, KUNHAHAMMED KUTTY, RESIDING AT VELLAKKAT, ABHAYAM, P.O. POOKAYIL, TIRUR, MALAPPURAM- 676107 - 5 SALIQUATH VELLAKATT, D/O V, KUNHAHAMMED KUTTY, RESIDING AT VELLAKKAT, ABHAYAM, P.O. POOKAYIL, TIRUR, MALAPPURAM-676107 (LEGAL HEIRS OF THE DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDL A2 TO ADDL A5, VIDE ORDER DATED 14.03.2023 IN IA NO.2/2022) BY ADVS. SRI.V.V.SURENDRAN V.V.SURENDRAN P.A.HARISH P.M.PADMANABHAN ## **RESPONDENT/S:** 1 K.N.KARUPPAN(DIED) S/O NALLASAMY CHETTIAR,RESIDING AT NO.11, GOVINDA COUNDER STREET,, NEAR KSE HIGH SCHOOL ROAD, THIRUPUR. RFA No.435 of 2007 ## -: 2 :- - 2 K.N.NAGARATHNAM(DIED) ,SO N.NAL CHETTIAR, RESIDING AT NO.15, TOWN EXTENSION,, 1ST STREET, OPP. NSK HOSPITAL, THIRUPPUR. (DIED) DEATHS OF R1 AND R2 RECORDED AS ER ORDER DATED 20/07/2017 IN MEMO DATED 14/07/2017 BEARING CF NO.3138/2017 - 3 S.M.MARUTHAMBAL DO K.NALLASAMY CHETTIAR, RESIDING AT NO.10, GOVINDA COUNTER, STREET, NEAR KSE HIGH SCHOOL ROAD, THIRUPUR. - 4 P.SARASWATHY DO K.NALLASAMY CHETTIAR RESIDING AT DOOR NO.37, PROFESSOR STREET,, THIRUPUR. - 5 M.CHINNUSWAMY SO MANIKAM CHETTIAR RESIDING AT NO.39, KONGU NAGAR,, 3RD STREET, THIRUPUR. - 6 VASUDEVAN CHETTIAR SO KARUPPANNA CHETTIAR, RESIDING AT KAMMATHI VAYAL,, SREE MADURAI VILLAGE P.O., SREEMADURAI,, GUDALUR TALUK. - 7 KARNAN CHETTIARSO KARUPPANNA CHETTIAR RESIDING AT KAMMATHI VAYAL,, SREE MADURAI VILLAGE P.O., SREEMADURAI,, GUDALUR TALUK. - 8 SAJITH K.K. SO ABDURAHIMANKUTTY RESIDING AT ELETTIL AMSOM AND DESOM,, KOZHIKODE. - 9 M.V.SUNDER RAJ SO K.V.THANGASWAMY RESIDING AT PANNIYANKARA AMSOM DESOM,, KOZHIKODE. - 10 VELIVALAPPIL CHATHUKUTTY S/O PANCHU, RESIDING AT THALAKULATHUR AMSOM AND, DESOM, KOZHIKODE. - 11 KARAPPAN CHETTIAR SO RAMASWAMY RESIDING AT TRICHY VILLAGE, TRICHY. - 12 ARUMUGHAN CHETTIAR SO MUTHAYIA CHETTIAR, RESIDING AT 7/112 H CHERIYACHUNDAYIL,, OVALI AMSOM, GUDALUR TALUK,, NEELAGIRI DISTRICT. - 13 V.RADHAKRISHNAN SO GOPALAN RESIDING AT NELLICODE AMSOM,DESOM,, KOZHIKODE. - 14 DR. SHAHINA K.K. DO ABOOBACKER RESIDING AT ELETTIL, ELETTIL AMSOM DESOM,, KOZHIKODE. RFA No.435 of 2007 -: 3 :- 15 ADDL.R15-RANGANAYAKI, AGED 70 YEARS WIFE OF KARUPPANNAN,RESIDING AT 11,GOVINDHAGOUNDER STREET,KSC SCHOOL STREET, TIRUPUR, TAMILNADU 641 601. 16 ADDL.R16-MUTHMAHESWARI, AGED 40 YEARS D/O KARUPPANNAN,RESIDING AT 11, GOVINDHAGOUNDER STREET,KSC SCHOOL STREET, TIRUPUR,TAMILNADU- 641 601. (LEGAL HEIRS OF THE DECEASED R1 ARE IMPLEADED AS ADDL R15 & ADDL R16, VIDE ORDER DATED 14.03.2023 IN IA NO.1902/2017) 17 ADDL.R17-DHANALAKSHMI, AGED 69 YEARS W/O NAGARATHINAM,RESIDING AT 7/15,TOWN EXTENSION 1ST STREET,TIRUPUR TOWN,TIRUPUR, TAMILNADU-641 601. 18 ADD.R18-MANIKANDAN, AGED 45 YEARS S/O NAGARATHINAM,RESIING AT 7/15,TOWN EXTENSION 1ST STREET, TIRUPUR TOWN,TIRUPUR,TAMILNADU- 641 601. 19 ADDL.R19- PRABHAKARAN, AGED 43 YEARS S/O NAGARATHINAM,RESIDING AT 7/15,TOWN EXTENSION 1ST STREET, TIRUPUR TOWN, TIRUPUR,TAMILNADU- 641 601. 20 ADDL.R20- ROOPA, AGED 33 YEARS W/O JAGADEES, RESIDING AT 7/15,TOWN EXTENSION 1ST STREET, TIRUPUR TOWN, TIRUPUR,TAMILNADU 641 601. (LEGAL HEIRS OF THE DECEASED R2 ARE IMPLEADED AS ADDL R17 TO ADDL R2O, VIDE ORDER DATED 14.03.2023 IN IA NO.1902/2017) RFA No.435 of 2007 -: 4 :- BY ADVS. S.ANANTHAKRISHNAN,N.K.SUBRAMANIAN,SHYAM PADMAN S.ANANDAKRISHNAN(K/001354/2016),SHYAM PADMAN,N.K.SUBRAMANIAN S.ANANTHAKRISHNAN(K/958/1992),SHYAM PADMAN,N.K.SUBRAMANIAN S.SINDHU A.D.SHAJAN JESSY S.SALIM S.ANANTHAKRISHNAN N.K.SUBRAMANIAN SHYAM PADMAN THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 12.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **Sathish Ninan, J.** ## **============================== R.F.A No.435 of 2007** **========================== Dated this the 12[th] day of December, 2023** ## **JUDGMENT** The suit is for a declaration that certain registered documents are null and void and that the same would not affect the title and possession of the plaintiffs over the plaint schedule property, for a prohibitory injunction, and for damages. The suit was decreed by the Trial Court. The 9[th] defendant is in appeal. 2. The 9[th] defendant alone appeared in the suit. He had filed a written statement claiming rival title over the property. 3. It appears that the 9[th] defendant did not take part in the trial. The Court accepted the evidence of the plaintiff and decreed the suit. 4. I have heard Sri.P.K.Harish on behalf of the **R.F.A No.435 of 2007** **==> picture [34 x 9] intentionally omitted <==** appellants, Sri.A.Shanthalingam learned senior counsel and Sri.Shyam Padman on behalf of the contesting respondents. 5. The suit was listed for trial in the list on 10.08.2006. On 08.08.2006, that is two days prior to the trial, there was a change of the counsel appearing for the 9[th] defendant. The new counsel filed an application as I.A No.3750/06 seeking to remove the case from the list. In the affidavit filed in support of the application, it was stated that he was entrusted with the case file only on 08.08.2006 and that more than 100 documents were produced from the side of the plaintiffs. He sought time to prepare the case. The application was filed on 09.08.2006. The Court, as per order dated 10.08.2006, dismissed the application and proceeded for trial. 6. Paragraph 6 of the impugned judgment refers to the failure on part of the 9[th] defendant to contest the **R.F.A No.435 of 2007** ## -: 3 :- ## suit. The same reads thus: _Plaintiffs tendered evidence of PW1 and marked Exts.A1 to A39 documents. Exts.C1 and C1(a) are the report and sketch submitted by the commissioner. Counsel for defendant No.9 reported no cross of PW1. Case was posted for defence evidence. But the defendant No.9 the only contesting defendant failed to appear. No evidence was tendered. Plaintiffs side had submitted that physical presence of defendant No.9 should be insisted if the defendant really had any evidence to tender. It seems, that it is on such a representation by the plaintiffs the defendants side failed to appear on the day the case stood posted for evidence._ 7. The cause title of the judgment of the trial court shows that the 9[th] defendant is represented by his former counsel. Even going by the statements in paragraph 6 of the judgment as noticed above, the defendant has failed to participate in the trial. When the defendant had failed to cross examine PW1 and the 9[th] defendant was absent, it was for the Court to have set him exparte and disposed of the suit in terms of Order XVII Rule 2 of the Code of Civil Procedure, 1908. The discretion to proceed under Explanation to Rule 2 of ## **R.F.A No.435 of 2007** -: 4 :- Order XVII is limited to cases where the party remains absent after tendering atleast substantial part of his evidence.(See _**Prakash Chander Manchanda v. Smt.Janki Manchanda AIR 1987 SC 42**_ ). As noticed above, the 9[th] defendant had not taken part in the trial at all. Therefore the Court should have set him exparte and proceed with the trial. At any rate, the judgment impugned could hence be only considered as an exparte one. 8. Since there had been a change of vakkalath for the 9[th] defendant and the counsel had sought an adjournment by filing an affidavit, I am of the opinion that some indulgence could have been shown. It is trite that every endeavour shall be made for disposal of the lis on merits rather than a disposal on default. I am of the opinion that an opportunity can be granted to have his contentions as raised in written statement already filed, thrashed out before the trial Court. 9. It is noticed that the 9[th] defendant who is the **R.F.A No.435 of 2007** -: 5 :- appellant is no more and his legal heirs are the additional appellants. Only the rights of the 9[th] defendant as already urged in the written statement on record need to be adjudicated upon. 10. I do notice that the suit is of the year 2004 and this appeal is of the year 2007. The delay in disposal of the appeal occurred consequent on death of the parties and the delay in service of notice. The inconvenience caused to the contesting respondents, who are appearing through the learned Senior counsel Sri.A.Shanthalingam and the learned counsel Sri.Shyam Padman can be compensated by way of costs. An amount of Rs.25,000/- each shall be payable to the counsel. 11. In the result this appeal is allowed. The decree and impugned judgment in the appeal is set aside. The suit is remanded back to the trial Court for fresh disposal. As noted supra, only the contentions urged by the 9[th] defendant need be adjudicated. The costs as **R.F.A No.435 of 2007** **==> picture [34 x 9] intentionally omitted <==** noticed in paragraph 10 above shall be paid to the respective counsel within a period of one week from today. The parties shall appear before the trial Court on 20.12.2023. No further notice of appearance need to be issued to the parties. The Court shall make every endeavour to have the suit tried and disposed of on or before 28.02.2024. If the appellants fail to pay the costs as ordered above, the appeal will stand dismissed. Considered the facts it is ordered that one half of the court fee paid on the memorandum of appeal shall be refunded to the appellants. Sd/- **Sathish Ninan, Judge** SVP