Sankaranarayanan vs The Ottapalam Maintenanace ...
2021 Latest Caselaw 3168 Ker

Citation : 2021 Latest Caselaw 3168 Ker
Judgement Date : 28 January, 2021

Kerala High Court

Sankaranarayanan vs The Ottapalam Maintenanace ... on 28 January, 2021

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

          THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

     THURSDAY, THE 28TH DAY OF JANUARY 2021 / 8TH MAGHA, 1942

                       WP(C).No.14158 OF 2020(T)


PETITIONER/S:

                SANKARANARAYANAN,
                AGED 66 YEARS,
                S/O. MOOKAMI AMMA (LATE), VELUTHEDATH CHERUVEETIL,
                CHAZHIKKATIRI, THIRUMITTAKOODU,PALAKKAD DISTRICT.

                BY ADV. SRI.K.RAKESH

RESPONDENTS :

      1         THE OTTAPALAM MAINTENANACE TRIBUNAL AND
                SUB-DIVISIONAL MAGISTRATE,
                OTTAPALAM POST, PALAKKAD DISTRICT, PIN 679 101.

      2         PADMAVATHIAMMA,
                AGED 70 YEARS,
                D/O. MOOKAMI AMMA(LATE)
                VELUTHEDATH CHERUVEETIL, CHAZHIKKATIRI,
                THIRUMITTAKOODU, PALAKAD DISTRICT, PIN 679 533.

                R2 BY ADVS. SRI.K.A.MANZOOR ALI
                            SMT.RITTY K.REJI
                            SRI.T.K.SURESH



                SMT MABLE C KURIAN, GOVERNMENT PLEADER

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD            ON
28.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.14158 OF 2020(T)                 2




                                 JUDGMENT

The petitioner is a senior citizen. He is the younger brother of the 2nd

respondent. On 27.9.2006, Sale Deed No. 3466 of 2006 of the Thrithala SRO

was executed by the 2nd respondent in favour of the petitioner assigning her

entire rights over an item of property after accepting valuable consideration.

The records reveal that the 2nd respondent continued to reside in the

building situated in the property which was assigned.

2. In course of time, the relationship between the parties became

strained and apprehending forcible dispossession, the 2nd respondent

instituted O.S.No.6 of 2019 before the Munsiff Court, Pattambi seeking an

injunction against forcible dispossession. The said suit is pending.

3. While so, the 2nd respondent lodged a complaint invoking the

provisions of the Maintenance and Welfare of Parents and Senior Citizens Act,

2007 before the Maintenance Tribunal, Ottappalam. The Tribunal invoking its

powers under the Act has passed Ext.P3 order on 6.9.2019 ordering that the

petitioner shall not alienate the property and shall not disturb the continued

residence of the 2nd respondent.

4. Ext.P3 order is under challenge in this writ petition.

5. Sri. Rakesh K., the learned counsel appearing for the petitioner

submitted that an out and out sale deed was executed on 11.9.2006 after

receiving valid consideration. This deed was executed much before the

coming into force of Act 54 of 2007, which was on 24.8.2008. According to

the learned counsel, the Maintenance Tribunal could not have passed an

order interdicting the transfer of the property. He would then refer to Ext.P4

order sheet to bring home the point that neither the petitioner nor the 2nd

respondent was present when the case was first called on 13.8.2019. The

Tribunal had in fact endorsed in the order that 'the petition dismissed for non-

appearance'. After lunch, the 2nd respondent appeared and without hearing

the petitioner herein, the impugned order was passed. It is submitted that

the principles of natural justice have been blatantly violated and the

provisions of the Act and the Rules as to the procedure to be followed have

not been complied with.

6. I have also heard Sri. Manzoor, the learned counsel appearing for

the 2nd respondent.

7. The specific case of the petitioner is that he was not granted an

opportunity to advance his version, especially in a case wherein, according to

him, the provisions of the Act are not applicable. In the order passed by the

Tribunal, it is stated as follows:

"ട വഷയ സ ബനച 24.07.18 തയതയൽ കൺസലയയഷൻ നടതയടളത 23.07.19, 13.08.19 തയതകളൽ വച രണ നടതയടളതമ ണ. 24.07.19, 23.07.19 തയതകളൽ ഇരകകകള ഹ ജര യടല തത , 13.08.19 തയതകളലല വച രണയൽ പര തക ര ഹ ജര യടളതമ ണ. പര തക ര നലവൽ ഒറക ണ ത മസകനലതന , പസത വടൽ ത മസകനതന എതർകക എതർല5 ന പറഞടലലന പര തക ര വച രണയവളയൽയബ ധ5ചടളത ണ."

8. After conciliation was held on 24.7.2018, the case was posted on

23.7.2019. On that day, none appeared. The case was then posted on

13.8.2019. From Ext.P4 order sheet, it is apparent that the case was initially

dismissed for non-appearance. It was thereafter that the said endorsement

was struck off and the impugned order was passed. There appears to be

considerable merit in the submission of the petitioner that a valid opportunity

was not granted to the petitioner before passing the order. On that sole

ground, the order is liable to be set aside.

9. Resultantly, this writ petition will stand allowed and Ext.P3 order

will stand set aside. The case is remitted back to the 1st respondent to pass

fresh orders in accordance with law. The Tribunal shall endeavour to pass

final orders with notice to both the parties expeditiously, at any rate, within a