Kerala High Court
Vanajakshiyamma vs M.Sankari on 3 December, 2024
Author: K.Babu
Bench: K.Babu
O.P. (C) No.166 of 2020
..1..
2024:KER:91245
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE BASANT BALAJI
TUESDAY, THE 3RD DAY OF DECEMBER 2024 / 12TH AGRAHAYANA,
1946
OP(C) NO. 166 OF 2020
AGAINST THE ORDER DATED 28.06.2019 IN
I.A.No.388/2018 IN AS NO.79 OF 2018 OF ADDITIONAL
DISTRICT COURT-V, KOTTAYAM ARISING OUT OF THE
ORDER/JUDGMENT DATED 15.12.2017 IN OS NO.167 OF 1996 OF
MUNSIFF COURT, CHANGANACHERRY
PETITIONER/S:
1 VANAJAKSHIYAMMA
AGED 72 YEARS
W/O. SREEDHARAN NAIR, MADATHANI HOUSE,
VAZHAPPALLY WEST VILLAGE, VAZHAPPALLY WEST KARA,
CHANGANACHERRY TALUK, NOW RESIDING AT SREE
NILAYAM HOUSE, POONJAR NADUBHAGOM KARA, POONJAR
VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT,
PIN-686 581
2 M.K. PRABHAKARAN NAIR,
AGED 70 YEARS
S/O. KRISHNA PANICKER, MADATHANI HOUSE,
VAZHAPPALLY WEST VILLAGE, VAZHAPPALLY WEST KARA,
O.P. (C) No.166 of 2020
..2..
2024:KER:91245
CHANGANACHERRY TALUK, KOTTAYAM DISTRICT, PIN-686
103
BY ADVS.
S.RANJIT (KOTTAYAM)
GOKUL DAS V.V.H.
RESPONDENT/S:
1 M.SANKARI
AGED 67 YEARS
D/O. LATE M. SAROJINIDEVI AMMA,
MUKKKATTUPURAYIDATHILAYA DEVI VIHAR, VAZHAPPALLY
WEST VILLAGE, VAZHAPPALLY WEST MURI, NOW
RESIDING AT FLAT NO. 5, TYPE 4, C.I.F.T.
QUARTERS, THEVARA, ERNAKULAM DISTRICT, PIN-682
013
2 M. KUSUMAM,
AGED 66 YEARS
D/O. LATE M. SAROJINIDEVI AMMA,
MUKKATTUPURAYIDATHILAYA DEVI VIHAR, VAZHAPPALLY
WEST VILLAGE, VAZHAPPALLY WEST MURI, NOW
RESIDING AT 24, GOKULAM, VENKIDESWARA NAGAR,
POZHICHALLOOR, CHENNAI, TAMILNADU, PIN-600 074
3 M.S. MOHANA KUMAR,
AGED 61 YEARS
S/O. LATE M. SAROJINIDEVI AMMA,
MUKKATTUPURAYIDATHILAYA DEVI VIHAR, VAZHAPPALLY
WEST VILLAGE, VAZHAPPALLY WEST MURI, NOW
RESIDING AT 102, PANCHSHEEL APARTMENT, KRISHNA
TOWNSHIP, VASAI ROAD, MAHARASHTRA, PIN-401 202.
O.P. (C) No.166 of 2020
..3..
2024:KER:91245
4 K.G. GEETHA DEVI,
AGED 78 YEARS
W/O. LATE M. MADHAVAN NAIR, DEVI HOUSE, MURUKA
NAGAR, PERUNNA P.O, CHANGANACHERRY TALUK,
KOTTAYAM DISTRICT, PIN-686 102
5 MIDHUN M
AGED 55 YEARS
S/O. LATE MADHAVAN NAIR, DEVI HOUSE, MURUKA
NAGAR, PERUNNA P.O, CHANGANACHERRY TALUK,
KOTTAYAM DISTRICT, PIN-686 102
6 JITHIN M,
AGED 53 YEARS
S/O. LATE MADHAVAN NAIR, DEVI HOUSE, MURUKA
NAGAR, PERUNNA P.O, CHANGANACHERRY TALUK,
KOTTAYAM DISTRICT, PIN-686 102
7 SUSHAMA,
AGED 61 YEARS
W/O. VELAYUDHAN NAIR, MADATHANI HOUSE,
VAZHAPPALLY WEST VILLAGE, VAZHAPPALLY WEST KARA,
NOW RESIDING AT KANJIRAKKATTU HOUSE, VARAPPETTY
P.O, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT,
PIN-686 691
8 BALAKRISHNAN NAIR,
AGED 62 YEARS
S/O. VELAYUDHAN NAIR, KRISHNA VILASAM,
VAZHAPPALLY WEST VILLAGE, VAZHAPPALLY WEST KARA,
CHANGANACHERRY TALUK, KOTTAYAM DISTRICT, PIN-686
103
9 RAJALEKSHMIYAMMA,
AGED 74 YEARS
D/O. BHAVANIYAMMA, MADATHANI KUNNUMPURAM HOUSE,
VAZHAPPALLY WEST VILLAGE, VAZHAPPALLY WEST KARA,
O.P. (C) No.166 of 2020
..4..
2024:KER:91245
CHANGANACHERRY TALUK, KOTTAYAM DISTRICT, PIN-686
103
0 M.K. GOPAKUMAR,
AGED 60 YEARS
S/O. KRISHNA PANICKER, MADATHANI HOUSE,
VAZHAPPALLY WEST VILLAGE, VAZHAPPALLY WEST KARA,
CHANGANACHERRY TALUK, KOTTAYAM DISTRICT, PIN-686
103
R1 TO R3 BY ADV SRI.RAJEEV V.KURUP
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
03.12.2024, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
O.P. (C) No.166 of 2020
..5..
2024:KER:91245
K.BABU, J.
-------------------------------------
O.P.(C) No.166 of 2020
----------------------------------------
Dated this the 3rd day of December, 2024
JUDGMENT
The challenge in this Original Petition is to the order dated 28.06.2019 passed by the Additional District Court- V, Kottayam in I.A.No.388/2018 in A.S.No.79 of 2018.
2. The petitioners are appellant Nos. 2 and 3 in A.S.No.79 of 2018. They were additional defendants in O.S.No.167 of 1996 on the file of the Munsiff's Court, Changanacherry. When they failed to contest the suit, the trial Court decreed the suit in favour of the plaintiffs.
3. The petitioners filed an application under Order IX Rule 13 CPC to set aside the ex parte decree. Later, they challenged the decree by filing A.S.No.79 of 2018 O.P. (C) No.166 of 2020 ..6..
2024:KER:91245 along with an application under Order XLI Rule 3A CPC seeking to condone the delay of 277 days in filing the appeal. The Appellate Court dismissed the application filed under Order XLI Rule 3A CPC and recorded that the appeal was not admitted as it was time barred. The petitioners pleaded in the application under Order XLI Rule 3A CPC that they filed a petition to set aside the ex parte decree under Order IX Rule 13 CPC and the same was abandoned by the Counsel and therefore, there occurred a delay of 277 days in preferring the appeal.
4. The respondents resisted the application seeking to condone the delay contending that the petitioners failed to show sufficient reason for condoning the delay. The respondents stated that the pleading of the petitioners that the application under Order IX Rule 13 CPC was abandoned by the counsel is not true. O.P. (C) No.166 of 2020
..7..
2024:KER:91245
5. Based on the rival contentions, the appellate Court proceeded to take evidence. Petitioner No.2 was examined as PW1. Exts.B1 to B3 were marked on the side of the respondents.
5. The learned counsel for the petitioners submits that the counsel for the petitioners abandoned the application under Order IX Rule 13 CPC without the petitioners' instructions. The learned counsel further submitted that the endorsement 'not pressed' was also made by the counsel without their instructions.
6. The learned counsel submitted that there was no laches on the part of the petitioners in causing the delay in preferring the appeal. The learned counsel for the respondents, per contra, submitted that the petitioners failed to establish the reasons stated in the affidavit filed in support of the application while giving O.P. (C) No.166 of 2020 ..8..
2024:KER:91245 evidence and therefore, the order dismissing the application seeking condonation of delay requires no interference.
7. The affidavit filed in support of the application seeking condonation of delay reads thus:-
"3.The appellants herein are arrayed as additional defendants 3 to 6 in OS 167/96. As informed by the first two defendants, Petitioners/Appellants didn't contest the case in lower court. The suit was decreed ex parte declaring plaintiff's title over plaint item No.2. Thereafter Petitioners/Appellants approached the concerned advocate to file a petition under Order 9 Rule 13 of the Code of Civil Procedure. Later it was found that he had abandoned the case. Subsequently I collected the judgment on 29.01.18 and entrusted my advocate at Kottayam to take further steps. Hence there is delay of 277 days in filing the appeal. Such delay is not caused by any willful negligence on my part. Unless delay of 277 days is not condoned and appeal is admitted irreparable injury, loss and hardships would be caused to me. Hence prayer for condoning delays of 277 `days and to admit appeal."O.P. (C) No.166 of 2020
..9..
2024:KER:91245
8. In the affidavit, petitioner No.2 pleaded that after the ex parte decree, the petitioners approached their lawyer to file a petition under Order IX Rule 13 CPC and later it was found that the lawyer abandoned the case and thereafter, they collected the judgment on 29.01.2018 and entrusted another lawyer at Kottayam to take further steps.
9. While giving evidence as PW1, petitioner No.2 initially stated that the lawyer abandoned the application filed under Order IX Rule 13 CPC. While examined in cross, she admitted that the petition to set aside the ex parte decree was dismissed as not pressed. Ext.B1, the copy of the order in I.A.No.2364/2017, the application filed under Order IX Rule 13 CPC shows that the petition was dismissed as not pressed.
O.P. (C) No.166 of 2020
..10..
2024:KER:91245
10. Based on this inconsistency, the appellate Court found that the petitioners failed to show sufficient cause for condoning the delay.
11. This is an application filed under Article 227 of the Constitution of India. The scope of interference by the High Court is very limited. The order impugned is noway untenable in law. I find no reason to interfere. The Original Petition stands dismissed.
The learned counsel for the petitioners submits that the appellate Court has not yet drawn a decree in the matter. If the petitioners prefer an application seeking such a relief, the appellate Court shall pass orders on it, in accordance with law.
Sd/-
K.BABU, JUDGE kkj O.P. (C) No.166 of 2020 ..11..
2024:KER:91245 APPENDIX OF OP(C) 166/2020 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE ORDER DATED 15.12.2017 IN I.A NO. 2364/2017 IN O.S. NO. 167/96 BEFORE THE MUNSIFF'S COURT, CHANGANACHERRY.
EXHIBIT P2 TRUE COPY OF THE DELAY CONDONATION APPLICATION FILED AS I.A. NO. 388/2018 IN A.S. NO. 79/2018 BEFORE THE ADDITIONAL DISTRICT COURT-V, KOTTAYAM. EXHIBIT P3 TRUE COPY OF THE ORDER DATED 28.06.2019 IN I.A. NO. 388/2018 IN A.S. NO. 79/2018 BEFORE THE ADDITIONAL DISTRICT COURT V, KOTTAYAM.