## IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.RAMKUMAR & THE HONOURABLE MR.JUSTICE K.HARILAL
WEDNESDAY, THE 7TH DAY OF MARCH 2012/17TH PHALGUNA 1933
FAO.No. 320 of 2011 ( )
----------------------OS.137/2008 of PRINCIPAL SUB COURT,ERNAKULAM
APPELLANT(S)/APPELLANTS/PETITIONERS-DEFENDANTS 1 TO 4:
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1. VINAYA KUMAR,
SON OF CHANDRASEKHARAN, AGED 49 PURATHETHAZHATHU HOUSE, MULAMTHURUTHY KOCHI-682 315.
2. KARTHIKA,
WIFE OF VINAYA KUMAR, AGED 38 PURATHETHAZHATHU HOUSE, MULAMTHURUTHY KOCHI-682 315.
## 3. HARSHAN KUMAR,
SON OF CHANDRASEKHARAN, AGED 43 MULLAMPARAMBIL HOUSE, ERUVELI, MULAMTHURUTHY KOCHI-682 314.
## 4. BINDHU,
WIFE OF HARSHAN KUMAR, AGED 38, MULLAMPARAMBIL HOUSE ERUVELI, MULAMTHURUTHY, KOCHI-682 314.
BY ADVS.SRI.T.B.THANKAPPAN
SRI.T.T.HARIKUMAR SRI.RAHUL SHENOY
RESPONDENT(S)/RESPONDENTS-PLAINTIFFS AND DEFENDANTS 6 :
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## 1. C.N.UNNIKRISHNAN,
- SON OF NARAYANA PILLAI, AGED 45
- CO-OPERATIVE BANK EMPLOYEE, SOUPARNIKA
- NEAR ERUVELI, MULAMTHURUTHY VILLAGE, KOCHI-682 314.
2. BASIL,
- SON OF VARGHESE, AGED 45, BUSINESS
- BLAYIL HOUSE, CHOTTANIKKARA, KOCHI-682 312.
3. KARTHYAYANI,
- WIFE OF CHANDRASHEKARAN, AGED 71, MULLAMPARAMBIL ERUVELI, MULAMTHURUTHY, KOCHI-682 312.
4. VALSALA KUMARI,
- WIFE OF MURALI, AGED 48, MURINGANAYATH THYKOODAM, POONITHUR.682 301.
5. GEETHAKUMARI, W/O. PRAKASAN, AGED 46 CHETTIKUNNEL KANJIRAMATTOM, PIN-686585.
6. LATHIKA KUMARI, W/O. SHAJI, MULLAMPARAMBIL HOUSE, ERUVELI, CHOTTANIKKARA. PIN-682312.
BY ADV. SRI.A.K.CHINNAN R1 AND 2
R3 TO 6 BY ADV. SRI.BINU MATHEW
THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 07-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
## V. RAMKUMAR
&
## K. HARILAL,JJ.
........................................................ F.A.O. NO. 320 OF 2011 .........................................................
## Dated: 7-3-2012
## JUDGMENT
Defendants 1 to 4 in O.S. 137 of 2008 on the file of the Principal Sub Court, Ernakulam are the appellants in this appeal filed under Order XLIII Rule 1 (d) C.P.C. The said suit instituted by respondents 1 and 2 herein was one for a declaration of the title of the plaintiffs over the plaint schedule property and for ejecting defendants 1 to 4 (the appellants herein) from the plaint schedule property. The suit was decreed ex-parte on 29-5-2010 against the appellants. I.A. Nos. 566 and 567 of 2011 were filed by the appellants for setting aside the ex parte decree and for condoning the delay of 206 days in filing the said petition. The said applications were dismissed by the trial court as per the common order dated 7-09-2011. Hence, this appeal.
2. We heard the learned counsel appearing for the
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appellants and the learned counsel appearing for contesting respondents 1 and 2 who are the plaintiffs.
3. After hearing both sides, we are not inclined to allow this appeal. The case of the appellants in support of the delay was as follows:-
The third defendant (third appellant) was conducting the case on behalf of defendants 1 to 4. They had filed written statement in the case. Thereafter due to certain unavoidable and inevitable circumstances, the appellants could not contact their counsel or enquire about the case. The third defendant was bed ridden with ulcer and was undergoing treatment under Dr. Prabhakaran whose medical certificate was produced. As the third defendant was not able to travel on account of the above disease he could not contact the counsel or ascertain the stage of the case. It was only when the petitioners received notice from the execution court in January 2011 that they came to know about the decree passed in the year 2010. There was no willful negligence or laches on the part of the appellants.
4. The above version put forward by the appellants was vehemently contested by the respondents/plaintiffs who contented
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that the non-appearance of the appellants on the day fixed for evidence was willful and deliberate, that they were dragging the matter, that the reasons stated in support of the petitions are false and without any merit and that the third defendant was not suffering from any disease as alleged.
5. Except producing Ext.A1 medical certificate from an Ayurvedhic physician, no oral evidence was adduced either by the 3[rd] defendant or by the other defendants all of whom had filed a joint written statement. The Medical Certificate dated 20-01-2011 only states that Harsha Kumar has been under treatment of the said physician as out patient for “Parinama Soola” from March 2010 onwards. It does not say that the 3[rd] appellant requires rest or that he is advised against undertaking any journey to the Advocates' office or to the Court. Eventhough the Court below posted the case for the appellants' evidence, none of the appellants was examined. The doctor who issued the Medical Certificate was also not examined in spite of the specific stand taken by the plaintiffs in their objection that the 3[rd] defendant was not having
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any such disease nor was he undergoing any treatment. The written statement filed in the case was by defendants 1 to 4 jointly. There was nothing to show that it was the 3[rd] defendant who was conducting the case on behalf of the other defendants as well. He did not mount the witness box also to testify to his case. Even assuming that the 3[rd] defendant was undergoing Ayurvedic treatment under the above doctor from March 2010 onwards, the appellants were set ex parte only on 29-05-2010. At any rate, the other appellants could have appeared and participated in the trial after consulting their Advocate. Nothing of that sort was done by them. There was, therefore, absolutely no satisfactory explanation for the inordinate delay of 206 days in filing the applications.
6. Even assuming that courts generally take a liberal view in the matter of condonation of delay, it is not the law that whatever be the length of delay it has to be condoned regardless of the lack of bona fides in the claim or without reference to the merits of the - case. (Vide M.K. Prasad v. P. Arumugam 2001) 6 SCC 176, - Balwant Singh v. Jagdish Singh (2010) 8 SCC 685, Raman Gopi
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- - v. Kunju Raman Uthaman 2011 (4) KLT 458, Primal v. Veena - 2011 (3) SCC 545; Aliyamma Isow v. Joseph 2011 (3) KLT 286 and Velayudhan v. Deepa - 2012 (1) KLT 528).
7. This Court is, therefore, entitled to examine whether there is some merit in the appellants' case. Now coming to the merits of the case, the appellants who are defendants 1 to 4 are two sons and their wives of one Chandrasekharan (D5) who was a school teacher who retired from service in the year 1984 and who subsequently died pending this suit on 18-09-2008. He is survived by his widow Karthiyayini (D6), his two sons Vinaya Kumar (D1) and Harsha Kumar (D3) and three daughters Valsala Kumari (D7), Geetha Kumari (D8) and Lathika Kumari (D9). Karthika (D2) is the wife of Vinayakumar and Bindu (D4) is the wife of Harsha Kumar. It was with his life's earnings as a school teacher that Chandrasekharan (D5) purchased 58 cents of land together with an old building thereon at Mulamthuruthi as per a registered sale deed dated 30-05-1980. He was residing there with his wife (D6). His three daughters had been given away in marriage and they are
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residing in their respective matrimonial homes. The appellants used to pester Chandrasekharan, the old man, with frequent demand for assignment of the said property. Their acts of importunity soon developed into frequent trespass and bodily assault on Chandrasekharan and his wife who were even hospitalised due to injuries. The third appellant is an active political worker and, therefore, complaints against the appellants before the police fell on deaf ears. Driven to the extreme state of helplessness, Chandrasekharan was constrained to institute a suit as O.S. No. 108 of 2006 before the Munsiff's Court, Ernakulam for a permanent prohibitory injunction against the appellants. He had also obtained an interim injunction against them. Violating the order of injunction, the appellants trespassed into the property and continued their physical assault on their parents. At a time when Chandrasekharan and his wife Kathiayayini were hospitalised, the appellants trespassed into the suit property and cut valuable trees standing thereon. Unable to bear the humiliation, Chandrasekharan finally sold the property to the plaintiffs herein as per registered
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sale deed of the year 2007 and handed over to them the property together with the house and other improvements thereon. On coming to know of the transfer, the appellants trespassed into the property, forcibly broke open the lock of the house and reduced the property into their possession. Thereupon the plaintiffs (R1 and R2 herein ) moved the local police but without any tangible results due to the political clout of the third appellant. The appellants then instituted a suit O.S. 708 of 2007 before the Sub Court, Ernakulam for specific performance of contract, setting up an oral agreement for sale by Chandrasekharan in favour of the third appellant herein in respect of 20 cents of land and for partition of the 10 cents of land where the residential house is situated on the allegation that it was the ancestral property of Karthiyayini, the wife of Chandrasekharan over which the appellants have a share. Although they obtained a temporary injunction against Chandrasekharan and , his wife and also against the plaintiffs herein, the said temporary injunction was later vacated and suit itself was dismissed for non-payment of balance
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court fee. It was at this juncture that respondents 1 and 2 herein instituted the present suit as aforesaid. This narration of facts will show that the application for setting aside the ex parte decree filed after an inordinate delay was totally devoid of any merit or bona fides.
For the foregoing reasons, we see absolutely no merit in this appeal which is accordingly dismissed. There will be no order as to costs.
Dated this the 7[th] day of March, 2012.
Sd/-V. RAMKUMAR, JUDGE.
Sd/-K. HARILAL, JUDGE.
/true copy/
P.S. to Judge
