Kerala High Court
Rajanisree Rajendran vs Sriranjini Sunil
Author: A. Hariprasad
Bench: A.Hariprasad
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
FRIDAY, THE 2ND DAY OF JUNE 2017/12TH JYAISHTA, 1939
OP(C).No. 1903 of 2016 ()
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AGAINST THE ORDER DATED 14-07-2016 IN I.A NO.2369/2015 IN FINAL
DECREE I.A NO.1362/2011 IN O.S NO.179/2001 ON THE FILE OF THE COURT
OF the PRINCIPAL SUBORDINATE JUDGE, PALAKKAD
PETITIONER/1ST RESPONDENT :
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RAJANISREE RAJENDRAN,
AGED 47 YEARS, D/O. RAJENDRAN, SREE KAILAS,
AYYAPPANKAVU GRAMAM, KOTTAYI P.O., PALAKKAD.
BY ADVS.SRI.SAJAN VARGHEESE K.
SRI.LIJU. M.P
RESPONDENTS/PETITIONER/RESPONDENTS 2 TO 7:
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1. SRIRANJINI SUNIL,
D/O. LATE PADMA, C/O. KRISHNAN, MAPRANATH HOUSE,
OPP. HOLY FAMILY SCHOOL, PULAKKATTUKARA P.O.,
CHITTISSERY, THRISSUR - 680 105.
2. PREMINI @ PREMA ,
DOOR NO.88, PLOT NO.13, W/O. RAVINDRAN,
RADHA NAGAR MAIN ROAD, CHROMPET, CHENNAI-600 044.
3. Y.BHAGYANATH ,
S/O. LATE RADHA, DOOR NO.17, LIC FLATS,
MADHAVAN NAIR ROAD, MAHALINGAPURAM, CHENNAI- 600144.
4. B.N.SANKAR,
S/O. LATE RADHA, NO.17, LIC FLATS,
MADHAVAN NAIR ROAD, MAHALINGAPURAM, CHENNAI- 600144.
5. VIDHYA SANKAR,
D/O. LATE RADHA, NO.17, LIC FLATS,
MADHAVAN NAIR ROAD, MAHALINGAPURAM, CHENNAI - 600144.
6. RAJEEV,
S/O. LATE PADMA, 10/44, KALIAYIL VEEDU,
DURGA VILLAGE, CHITTUR - 678 110.
OP(C).No. 1903 of 2016 () -2-
7. RAJKAMAL,
S/O. LATE PADMA, 10/44, KALIAYIL VEEDU,
DURGA VILLAGE, CHITTUR - 678 110.
* ADDL.8. SIVAKUMAR.M.D, AGED 53 YEARS,
S/O M.E DHARMALINGAM,
RESIDING AT 10/21 DIWAN DAHADUR SHANMUGAM STREET,
KILPAUK, CHENNAI, TAMIL NADU - 600 010.
* ADDITIONAL RESPONDENT 8 IS IMPLEADED IN THIS O.P(C) AS
PER THE ORDER DATED 21-02-2017 IN I.A NO.1491 OF 2016.
R7 BY ADV. SRI.P.SANJAY
R7 BY ADV. SMT.A.PARVATHI MENON
R7 BY ADV. SRI.SUSEEL M.MENON
R2 BY ADV. SRI.U.K.DEVIDAS
R2 BY ADV. SMT.P.M.SHAHIDA
R1 BY ADV. SRI.A.BALAGOPALAN
R1 BY ADV. SRI.A.RAJAGOPALAN
R1 BY ADV. SRI.M.S.IMTHIYAZ AHAMMED
RADDL. BY ADV. SMT.SREEDEVI KYLASANATH
RADDL. BY ADV. SMT.KAMALAKSHY KYLASANATH
RADDL. BY ADV. SRI.JOSELAL GEORGE
RADDL. BY ADV. SRI.R.MAHESH MENON
RADDL. BY ADV. SRI.ACHUTH KYLAS
R6 BY ADV. SMT.A.A.GEETHA
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 02-06-2017,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C).No. 1903 of 2016 ()
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 TRUE COPY OF THE FINAL REPORT PREFERRED BY THE
ADVOCATE COMMISSIONER.
EXHIBIT P2 TRUE COPY OF IA NO.2369/2015 PREFERRED BY THE 1ST
RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE OBJECTION PREFERRED BY THE PETITIONER
IN IA NO.2369/2015.
EXHIBIT P4 TRUE COPY OF THE ORDER DATED 14.7.2016 IN IA
NO.2369/2015.
RESPONDENT(S)' EXHIBITS : NIL.
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//TRUE COPY//
P.A TO JUDGE
amk
A. HARIPRASAD, J.
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O.P (C) No.1903 of 2016
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Dated this the 2nd day of June, 2017
J U D G M E N T
Petitioner, aggrieved by Ext.P4 order, has preferred this original petition.
2. Heard the learned counsel for the petitioner and the contesting respondents. Heard the learned counsel for the respondents 2 and 7 , who supported the petitioner.
3. Petitioner is the 8th respondent in a final decree application. The suit was one for partition of three items of properties. After passing of the preliminary decree, some of the parties died. Legal representatives applied for passing the final decree. Out of the three items of properties, item No.1 was sold on 10-08-2015 by auction and a stranger purchased the property in a court auction. Subsequently, the petitioner filed Ext.P2 application to set aside the ex parte order in the final decree application. That was filed on 20-08-2015. Item No.3, a property situated at Chennai, was sold on 23-02-2016 in another court auction and additional 8th respondent herein purchased the property for consideration. It is pertinent to note that item No.3 was sold after the petitioner appeared O.P (C) No.1903 of 2016 2 before the court and made a claim to set aside the ex parte order in the final decree proceedings. What is remaining to be partitioned is item No.2, which has to be divided by deputing a Commissioner.
4. Learned counsel for the petitioner submitted that the court below, by passing Ext.P4 order, allowed the petitioner (8th respondent in the final decree) to set the clock backwards upsetting the sale in respect of item Nos.1 and 3. Additional 8th respondent also seriously challenged the right of the petitioner to reverse the actions taken pursuant to the court orders.
5. Per contra, the learned counsel for the first respondent in this Original Petition contended that valuable properties have been sold for meagre amounts and all those sales were conducted in her absence.
6. On hearing the learned counsel for the parties and on perusal of Ext.P4, I am of the view that the order passed by the court below lacks clarity. Ex parte order against the first respondent could be set aside in the final decree proceedings and Article 137 of the Limitation Act may not apply, if that is done prospectively. It is the contention of the petitioner that the averments in Ext.P2 are frivolous and flimsy. It has been strongly contended that she was fully aware about the proceedings O.P (C) No.1903 of 2016 3 and the reasons stated to set aside ex parte order are factually and legally incorrect. However, the court below has chosen to allow the first respondent herein to participate in the proceedings. The ratio in Arjun Singh v. Mohindra Kumar and Others (AIR 1964 S.C 993) would clearly show that in order to set the clock backwards, the persons seeking to set aside ex party order should show sufficient reason for his non appearance on the date of hearing. In this case, the first respondent failed to establish any sufficient reason. However, there is nothing wrong in the court allowing her to participate in the proceedings from the date of appearance.
7. Therefore, Ext.P4 order is clarified. First respondent is allowed to participate in the final decree proceedings from 20-08-2015 onwards and she is not entitled to challenge any event happened in the final decree proceedings before that date. With this clarification, the Original Petition is disposed of.
Sd/-
A. HARIPRASAD
JUDGE
amk //True copy//
P.A to Judge