Kerala High Court
Mathew N.V vs Anitha D Costa @ Chinnamma N.V on 5 August, 2021
OP(C).3113/18 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
THURSDAY, THE 5TH DAY OF AUGUST 2021 / 14TH SRAVANA, 1943
OP(C) NO. 3113 OF 2018
AGAINST THE ORDER/JUDGMENT IN OS 83/2008 OF SUB COURT, SULTHAN
BATHERY, WAYANAD
PETITIONER/S:
MATHEW N.V.,
AGED 50 YEARS
AGED 50, S/O VARKEY, NIRAPPUTHOTTIYIL HOUSE, EDAVAKA
AMSOM DESOM, MANANTHAVADY TALUK, WAYANADU DISTRICT,
PINCODE - 670645.
BY ADVS.
SIRAJ KAROLY
SRI.C.K.PREM RAJ
RESPONDENT/S:
1 ANITHA D COSTA @ CHINNAMMA N.V.,
D/O VARKEY, AGED 59, KURPPIDIT NAGAR, HOUSE NO 214,
C/O SURESH BHAI MESTHRI, NAVADAJA P.O., AHAMMEDABAD,
PIN - 13, GUJARATH.
2 ELIKUTTY DEVASSIA,
AGED 69 YEARS, W/O.DEVASSIA, KUDAKASSERIYIL (HOUSE),
VALAD.P.O., THAVINJAL AMSOM DESOM, MANANTHAVADY
TALUK, WAYANAD, PINCODE-670645.
3 DEVASSIA N.V(DIED),
S/O.VARKEY, NIRAPPUTHOTTIYIL HOUSE, EDAVAKA.P.O.,
EDAVAKKA AMSOM DESOM, MANANTHAVADY TALUK, WAYANAD,
PINCODE-670645.
4 KURIAN N.V.(DIED),
S/O.VARKEY, NIRAPPUTHOTTIYIL HOUSE, EDAVAKA.P.O.,
EDAVAKKA AMSOM DESOM, MANANTHAVADY TALUK, WAYANAD,
PINCODE-670645.
5 MERY N.V.,
AGED 62 YEARS, D/O.VARKEY, NIRAPPUTHOTTIYIL HOUSE,
EDAVAKA.P.O., EDAVAKKA AMSOM DESOM, MANANTHAVADY
OP(C).3113/18 2
TALUK, WAYANAD, PINCODE-670645.
6 JOSEPH N.V.,
AGED 57 YEARS, S/O.VARKEY, NIRAPPUTHOTTIYIL HOUSE,
THRISSILERY.P.O., THRISSILERY AMSOM DESOM,
MANANTHAVADY TALUK, WAYANAD, PINCODE-670645.
7 THOMAS N.V.,
AGED 54 YEARS, S/O.VARKEY, NIRAPPUTHOTTIYIL HOUSE,
MARTHOMA NAGAR.P.O., GUDALOOR, NILGIRIS, TAMILNADU.
8 ANNAMMA VARKEY,
(DIED), W/O.VARKEY.
9 ELIYAMMA,
AGED 65 YEARS, W/O.LATE KURIAN, NIRAPPUTHOTTIYIL
HOUSE, EDAVAKA.P.O., EDAVAKKA AMSOM DESOM,
MANANTHAVADY TALUK, WAYANAD, PINCODE-670645.
10 BINDHU,
AGED 42 YEARS, D/O.LATE KURIAN, NIRAPPUTHOTTIYIL
HOUSE, EDAVAKA.P.O., EDAVAKKA AMSOM DESOM,
MANANTHAVADY TALUK, WAYANAD, PINCODE-670645.
11 JILSON,
AGED 39 YEARS,
S/O.LATE KURIAN,
NIRAPPUTHOTTIYIL HOUSE, EDAVAKA.P.O., EDAVAKKA AMSOM
DESOM, MANANTHAVADY TALUK, WAYANAD, PINCODE-670645.
12 BEENA,
AGED 36 YEARS,
D/O.LATE KURIAN,
NIRAPPUTHOTTIYIL HOUSE, EDAVAKA.P.O., EDAVAKKA AMSOM
DESOM, MANANTHAVADY TALUK, WAYANAD, PINCODE-670645.
13 LEELAMMA,
W/O.DEVASSYA (LATE), NIRAPPUTHOTTIYIL HOUSE, NOW
RESIDING AT ATHIPALY.P.O., NAMBALAKKOTTA AMSOM DESOM,
GUDALUR TALUK, NILGIRIS.
14 BIJU,
S/O.DEVASSYA (LATE), AGED 50 YEARS, NIRAPPUTHOTTIYIL
HOUSE, NOW RESIDING AT ATHIPALY.P.O., NAMBALAKKOTTA
AMSOM DESOM, GUDALUR TALUK, NILGIRIS.
15 BINU,
AGED 47 YEARS, S/O.DEVASSYA (LATE), NIRAPPUTHOTTIYIL
HOUSE, NOW RESIDING AT ATHIPALY.P.O., NAMBALAKKOTTA
OP(C).3113/18 3
AMSOM DESOM, GUDALUR TALUK, NILGIRIS.
16 BINOY,
AGED 44 YEARS, S/O.DEVASSYA (LATE), NIRAPPUTHOTTIYIL
HOUSE, NOW RESIDING AT ATHIPALY.P.O., NAMBALAKKOTTA
AMSOM DESOM, GUDALUR TALUK, NILGIRIS.
17 SMITHA,
ADGED 34 YEARS, D/O.DEVASSYA (LATE), NIRAPPUTHOTTIYIL
HOUSE, NOW RESIDING AT ATHIPALY.P.O., NAMBALAKKOTTA
AMSOM DESOM, GUDALUR TALUK, NILGIRIS.
BY ADVS.
R5 TO R7 BY SRI.ARUN AJAY SHANKAR
R1 BY SRI.JIKKU SEBAN GEORGE
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 6.7.2021,
THE COURT ON 05.08.2021 DELIVERED THE FOLLOWING:
OP(C).3113/18 4
V.G.ARUN, J.
-----------------------------------------------
O.P(C).3113 of 2018
-----------------------------------------------
Dated this the 5th day of August, 2021
JUDGMENT
Petitioner is the 7th defendant in O.S.No.83 of 2008 on the files
of the Sub Court, Sulthan Batheri. The suit is filed by the 1 st
respondent seeking partition of the plaint schedule property by
metes and bounds and allotment of 1/8 share to her. Later, the
petitioner being absent on the date fixed for evidence, she was set
ex parte and an ex parte decree was passed against her on
25.6.2013. The petitioner filed Exhibit P5 petition seeking to set aside
the ex parte decree along with Exhibit P6 application for condoning
the delay of 695 days. The trial court dismissed both applications by
Exhibit P7 common order. Aggrieved, the petitioner preferred Civil
Miscellaneous Appeals before the District Court, Wayanad, which
were dismissed vide Exhibits P10 and P11 judgments. This original
petition is filed challenging Exhibits P7, P10 and P11 orders.
2. Sri.Siraj Karoli, learned counsel for the petitioner contended
that detailed explanation having been submitted for the petitioner's
absence on the day fixed for evidence and also for trial and for the
delay in filing the application for setting aside the ex parte decree,
the courts below committed gross illegality in dismissing the
application. In elaboration, it is submitted that on 21.4.2009, the
petitioner's son was admitted in a hospital at Calicut with serious
ailment and from then onwards he was undergoing continuous
treatment and had to be hospitalised frequently. From April, 2009 to
June, 2015, the petitioner and his wife were fully engaged in giving
care and treatment to their son. The failure to appear on the day
fided for evidence and the delay in filing the application for setting
aside the decree being for reasons beyond the petitioner's control,
the court should have adopted a liberal approach. It is contended that
the attempt of the court should be to eschew technical and
procedural objections and to render justice to the parties.
3. Sri.Gikku Seban George, learned counsel for the 1 st
respondent refuted the contentions and submitted that the attempt
of the petitioner is to deliberately delay the proceedings in the final
decree application. It is submitted that the suit was filed in the year
2008 and a preliminary decree for partition was passed on 25.6.2013.
The application for setting aside ex parte decree was filed only after
receipt of notice in the final decree application. It is contended that
the preliminary decree is not an ex parte decree in the strict sense
since the other defendants had contested the matter and given
evidence. Therefore, the remedy available to the petitioner is to file
appeal against the preliminary decree. Reliance is placed on the
decision of the Apex Court in Kerala State Electricity Board, Tvm.
v. Precot Meridian, Palakkad [2016 (4) KHC 829] to contend that
a strict view has to be adopted when there is inordinate delay.
Finally, it is submitted that, indulgence shown to the petitioner will be
to the prejudice of the 1st respondent, who has been prosecuting her
case for more than 12 years.
4. A reading of Exhibit P3 judgment in O.S.No.83 of 2008 shows
that the judgment was rendered on merits, though the 7 th
defendant/petitioner remained ex parte. The judgment and decree
are dated 25.6.2013. The application for setting aside the ex parte
decree was filed only on 19.6.2015, with a delay of 695 days. In
Exhibit P7 order the court below noticed that the petitioner did not
even show the fairness to prove the averments that he was
prevented from attending the court due to the illness of his son. No
evidence, either oral or documentary, was tendered by the petitioner.
No such attempt was made even at the appellate stage. It is only in
this original petition that some documents pertaining to the
treatment of the petitioner's son are produced. Therefore, in spite of
the strenuous contention by the learned counsel for the petitioner
that an opportunity should be granted for contesting the suit on
merits, I am not inclined to grant the relief, the petitioner having failed
to tender evidence in support of his case at the appropriate stage.
5. No doubt, the courts should adopt a liberal, pragmatic, justice
oriented, non-pedantic approach while dealing with an application for
condonation of delay. At the same time, the Apex Court has also held
that an application for condonation of delay should be drafted with
careful concern and not in a haphazard manner, harbouring the
notion that the courts are required to condone delay on the bedrock
of the principle that adjudication of a list on merits is seminal to the
justice dispensation system. In Esha Battacharjee v. Managing
Committee of Raghunathpur Nafar Academy and others
[(2013) 12 SCC 649], the Honourable Supreme Court frowned upon
the increasing tendency to perceive delay as a non-serious matter
and has observed that the lackadaisical propensity exhibited in a
non-chalant manner requires to be curbed. This Court in Precot
Meridian (supra) referred to the decision in Ezha Battacharjee
(supra) and held that the concept of liberal approach has to
encapsulate the conception of reasonableness and cannot be allowed
a totally unfettered free play.
6. As rightly contended by the learned counsel for the 1 st
respondent, this Court cannot be oblivious to the prejudice to which
the respondents will be put, if a liberal approach is adopted and the
impugned orders interfered with for no justifiable reason.
In the result, the original petition is dismissed.
Sd/-
V.G.ARUN, JUDGE
vgs
APPENDIX OF OP(C) 3113/2018
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE PLAINT DATED 9.4.2008 IN
O.S.NO.83/2008 ON THE FILE OF THE SUB
JUDGMENT, SULTHAN BATHERI.
EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT DATED
12.12.2008 IN O.S.NO.83/2008 ON THE FILE
OF THE SUB JUDGE SULTHAN BATHERI.
EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 25.6.2013
IN O.S.NO.83/2008 OF THE SUB COURT,
SULTHAN BATHERY.
EXHIBIT P4 TRUE COPY OF THE DECREE DATED 25,6,2013 IN
O.S.NO.83/2008 OF THE SUB COURT, SULTAN
BATHERI.
EXHIBIT P5 TRUE COPY OF I.A.NO.539/2015 DATED
19.6.2015 BEFORE THE SUB COURT,
SULTANBATHERI.
EXHIBIT P6 TRUE COPY OF THE DELAY CONDONATION
PETITION FILED ALONG WITH PETITION TO SET
ASIDE THE DECREE O.S.NO.83/2018 DATED
19.6.2015.
EXHIBIT P7 TRUE COPY OF THE ORDER DATED 19.2.2016 IN
I.A.NOS.539/2015 & 540/2015 IN
O.S.NO.83/2008 OF THE SUB COURT, SULTHAN
BATHERY.
EXHIBIT P8 TRUE COPY OF THE C.M.A.NO.2/2016 DATED
7.6.2017 FILED BEFORE THE DISTRICT COURT
WAYANAD KALPATTA.
EXHIBIT P9 TRUE COPY OF THE C.M.A.3/2016 DATED
7.6.2017 FILED BEFORE THE DISTRICT COURT,
WAYANAD, KALPETTA.
EXHIBIT P10 TRUE COPY OF THE COMMON JUDGMENT DATED
22.10.2018 IN C.M.A.NO.2/2016 OF THE COURT
OF THE ADDITIONAL DISTRICT JUDGE-II,
KALPETTA, WAYANAD.
EXHIBIT P11 TRUE COPY OF THE COMMON JUDGMENT DATED
22.10.2018 IN C.M.A.NO.3/2016 OF THE COURT
OF THE ADDITIONAL DISTRICT JUDGE-II,
KALPETTA, WAYANAD.
EXHIBIT P12 TRUE COPY OF THE FINAL DECREE APPLICATION
DATED 26.3.2015 F.D.I.A.NO.376/15 IN
O.S.NO.83/2008 ON THE FILE OF SUBORDINATE
JUDGE'S COURT, SULTHANBATHERY.
EXHIBIT P13 TRUE COPY OF THE MEDICAL CARD SHOWING
SUMMARY OF TREATMENT ISSUED FROM INSTITUTE
OF MATERNAL & CHILD HEALTH, CALICUT.
EXHIBIT P14 TRUE COPY OF THE REQUEST OF X-RAY
CONSULTATION DATED 21.4.2009 ISSUED FROM
MEDICAL COLLEGE HOSPITAL, CALICUT.
EXHIBIT P15 TRUE COPY OF THE DISCHARGE SUMMARY STATING
THE RECURRENCE OF THE ALIMENT ISSUED FROM
INSTITUTE OF MATERNAL & CHILD HEALTH,
CALICUT.
EXHIBIT P16 TRUE COPY OF THE FOLLOW UP ACTION
INCLUDING THE ADMISSION AND DISCHARGE OF
ALEX MATHEW ISSUED FROM INSTITUTE OF
MATERNAL & CHILD HEALTH, MEDICAL COLLEGE,
KOZHIKODE.
EXHIBIT P17 TRUE COPY OF THE ULTRASOUND SCAN REPORT OF
ALEX ISSUED FROM DISTRICT HOSPITAL,
MANANTHAVADY.
EXHIBIT P18 TRUE COPY OF THE O.P. TICKET DATED
22.11.2015 ISSUED FROM MEDICAL COLLEGE
HOSPITAL (I.M.C.H.), CALICUT.
EXHIBIT P19 TRUE COPY OF THE CERTIFICATE ISSUED BY
DR.DHANYA, DISTRICT HOSPITAL, MANANTHAVADY
DATED 8.11.2018.
EXHIBIT P19 TRUE COPY OF THE MANUSCRIPT OBTAINED BY
PETITIONER FROM DR.DIVYA STATING THE
GRAVITY OF AILMENT.
EXHIBIT P20 TRUE COPY OF THE CERTIFICATE ISSUED BY
DR.DIVYA C.K., PEDIATRICS, MANATHAVADY
GOVERNMENT DISTRICT HOSPITAL DATED
9.11.2018.
EXHIBIT P21 TRUE COPY OF THE NOTE GIVEN BY THE
PEDIATRICIAN FOR FURTHER PEDIATRIC
SURGERY.
EXHIBIT P22 PHOTOGRAPHS OF THE CHILD SHOWING THE SCARS
AND OTHER SIGNS OF SURGERY.
