Kerala High Court
V.V.Rajan vs Kandanhattil Sathyavathi on 9 October, 2012
Author: A.V.Ramakrishna Pillai
Bench: Thottathil B.Radhakrishnan, A.V.Ramakrishna Pillai
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI
TUESDAY, THE 9TH DAY OF OCTOBER 2012/17TH ASWINA 1934
FAO.No. 297 of 2012 ()
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IA.NO.1217/2012 IN AS.50/2006 of SUBORDINATE JUDGE OF THALASSERY
APPELLANT/PETITIONER:
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V.V.RAJAN
S/O. KRISHNAN NAIR, V.V.HOUSE, CHALUVAYAL
PALLIKKULAM, CHIRAKKAL AMSOM DESOM
EMPLOYED AT RIYAD
REPRESENTED BY HIS POWER OF ATTORNEY BALAKRISHNAN V.V.
S/O. CHANDOOTTY, VAYAL VEETTIL
CHIRAKKAL AMSOM DESOM, P.O.CHIRAKKAL
KANNUR DISTRICT.
BY ADV. SRI.B.PREMNATH (E)
RESPONDENTS:
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1. KANDANHATTIL SATHYAVATHI
D/O. NARAYANAN, RESIDING AT "SAVIRAD", PALLIKKULAM
CHIRAKKAL POST, KANNUR-11.
2. KARTHYAYANI
W/O. KRISHNAN NAIR, ASWATHI, CHALUVAYAL
POST CHIRAKKAL, KANNUR-11.
3. P.V.KRISHNAN NAIR
S/O. KUNHAMBU, ASWATHI, CHALUVAYAL
POST CHIRAKKAL, KANNUR-11.
(3RD RESPONDENT DIED ON 25.09.2009, BUT IN THE CAUSE TITLE
OF THE IMPUGNED ORDER, HE IS ARRAYED AS PARTY. THUS HE IS
SHOWN AS A RESPONDENT IN THE ARRAY OF PARTIES IN THIS
APPEAL)
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR
ADMISSION ON 09-10-2012, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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Thottathil B. Radhakrishnan
&
A.V.Ramakrishna Pillai, JJ.
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F.A.O.No. 297 of 2012
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Dated this the 9th day of October, 2012
JUDGMENT
Thottathil B. Radhakrishnan,J.
The third defendant in a suit for recovery of possession contested it on the plea that the parcel sought to be recovered belongs exclusively to him and also to third parties. His parents, who were co-defendants did not file appeal against the decree for recovery of possession, granted in that suit. He alone appeals. He was outside India. The appeal was prosecuted through his father as power of attorney holder. In the meanwhile, execution proceedings also commenced. Pending execution, his father fell sick and ultimately, had lost leg by amputation. Then the third defendant engaged another power of attorney. He proceeded, going by the records, to contest the execution F.A.O.No. 297 of 2012 2 proceedings. However, though the third defendant's appeal was dismissed for default, no steps were taken for restoration of that appeal, though long delay applications were filed to restore the appeal to file and to condone the delay in filing such application. The court below noticed that going by the proceedings of the executing court, the third defendant - appellant has to be mulcted with knowledge of the dismissal of the appeal at least on 08.10.2009 and that the applications seeking condonation of delay and restoration were filed only on 13.03.2012. While the court below is justified in saying that the enormous delay could not have happened if there is due diligence in applying to restore the appeal, we are of the view that the facts would disclose that the appellant's father who was his power of attorney holder was sick, lost his leg and later died. It was in the midst of all those that the appellant engaged another power of attorney holder. May be, there could have been a situation of lack of appropriate communication between the F.A.O.No. 297 of 2012 3 power of attorney holder and the appellant as regards the appeal. But we see that there was representation for the appellant before the executing court. The dispute being one related to immovable property and the suit being one for recovery of possession, we are of the view that ends of justice would be satisfied if the appellant gets a final hearing on merits in the first appeal filed by him. On the totality of the facts and circumstances, we are also satisfied that he had demonstrated sufficient cause for condonation of delay and also to restore the appeal dismissed for default, however on terms.
In the result, this appeal is allowed. The impugned common order is vacated and A.S.No.50/2006 on the file of the Sub Court, Thalassery is restored on condition that the appellant pays the first respondent through the counsel appearing for her before this Court an amount of Rs.25,000/-(rupees twenty five thousand only) as costs payable within a period of three weeks from now. The time F.A.O.No. 297 of 2012 4 limit shall be treated as peremptory. If such payment is not made, this appeal will stand dismissed automatically. Parties are directed to appear before the court below on 06.11.2012. Delivery in execution proceedings will stand adjourned by a period of six weeks to enable the court below to consider the application for interlocutory relief in the event of appeal getting re-admitted on payment of costs as directed above.
Sd/-
(Thottathil B. Radhakrishnan,Judge) Sd/-
(A.V.Ramakrishna Pillai,Judge) //true copy// P.A. To Judge.
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