Janaky vs Lalitha
2021 Latest Caselaw 7285 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

              THE HONOURABLE MR. JUSTICE A.HARIPRASAD

                                 &

            THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.

     TUESDAY, THE 02ND DAY OF MARCH 2021 / 11TH PHALGUNA, 1942

                        FAO.No.131 OF 2017

AGAINST THE ORDER IN IA NOS.5598 AND 5599 OF 2015 IN OS
964/2013 DATED 12-04-2017 OF PRINCIPAL SUB COURT, THRISSUR.

APPELLANTS/PETITIONERS 1 & 3 TO 5/DEFENDANTS 1 & 3 TO 5       :

        1      JANAKY,
               W/O.LATE KIZHAYIL VELLACHERY VEETTIL VASU,
               ADICHIRA DESOM, ELANAD VILLAGE,THALAPPILLY TALUK.

        2      LATHA, D/O.LATE KIZHAYIL VELLACHERY VEETTIL VASU
               & W/O.LATE VATTAPARAMBIL VEETTIL SREENIVASAN,
               MELARKKODE VILLAGE, DESOM, ALATHOOR TALUK.

        3      BEENA, D/O.LATE KIZHAYIL VELLACHERY VEETTIL VASU
               & W/O.CHAMMAKAD VEETTIL UNNIKRISHNAN, KIKKETHARA
               DESOM,VANDAZHY VILLAGE, ALATHOOR TALUK.

        4      SINDHU, D/O.LATE KIZHAYIL VELLACHERY VEETTIL VASU
               & W/O.CHAMMAKAD VEETTIL JAYAPRAKASH,
               VELAYODI VILLAGE, CHITOOR TALUK.

               BY ADVS.SRI.S.SREEKUMAR (SR.)
               SRI.R.GITHESH,SRI.S.KRISHNA PRASAD (AYALUR),
               SRI.P.MARTIN JOSE, SRI.MANJUNATH MENON,
               SRI.P.PRIJITH, SRI.SACHIN JACOB AMBAT,
               & SRI.THOMAS P.KURUVILLA

RESPONDENT/RESPONDENT/PLAINTIFF      :

               LALITHA, W/O.KALLEKULAM VEETTIL JAYAPRAKASH,
               KUZHALMANDAM VILLAGE,DESOM,
               ALATHOOR TALUK, PIN-678 523.

               BY ADV. SRI.N.U.HARIKRISHNA &
               BY ADV. SRI.G.SREEKUMAR CHELUR.

       THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD
ON    02.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 F.A.O No.131 of 2017                    2




                       A.HARIPRASAD & ZIYAD RAHMAN A.A., JJ.
                       -------------------------------------
                                F.A.O No.131 of 2017
                       -------------------------------------
                        Dated this the 2nd day of March, 2021


                                   JUDGMENT

A.Hariprasad, J.

Heard the learned counsel for the appellants and first

respondent. Despite service on the newly added second respondent, there is

no appearance.

2. Appellants are the defendants in O.S No.964 of 2013. The suit is

one for cancellation of a partition deed allegedly caused to be executed by

the plaintiff by committing fraud on the party and also seeking partition. At

the time of trial, the defendants remained absent and the suit was decreed

ex-parte on 28-01-2014. Thereafter, an application under Order IX Rule 13

C.P.C and an application under Section 5 of the Limitation Act, 1963 were

filed on 01-12-2015. In fact, there was a delay of 610 days in filing the

application to set aside the ex-parte decree. Reason pointed out for the delay

is that the matter was entrusted to an Advocate. At that time, his Advocate

clerk Sri.Vineeth did not file vakalath before the court despite giving specific

instructions. More over, he was involved in a criminal case for

misappropriation of money entrusted by the clients. For the above reasons,

the defendants could not get any information regarding the progress of the

case. Thereafter, they received a notice in the final decree proceedings. Then

only, they entrusted the lawyer to file an application under Order IX Rule 13

C.P.C with a petition to condone delay.

3. Per contra, the plaintiff/respondent contended that the final

decree application was filed much early and the notice thereon was served

on 02-06-2014. Despite that fact, the application was filed only on

01-12-2015. Learned Sub Judge, in paragraph 4, observed that there was

utter negligence on the part of the defendants in filing an application to set

aside the ex-parte decree in time. Therefore, the court below dismissed the

matter.

4. After hearing the learned counsel on both sides and considering the

rival contentions raised in the suit, we are of the view that a meritorious

claim shall not be thrown over board on technicalities. True, there is delay

on the part of the defendants in appearing before the court for seeking to set

aside the ex-parte decree. They have a reason that the Advocate clerk, to

whom the matter was entrusted, committed fraud and cheating on them.

However, we find that the appellants have a serious issue to be contested and

ex-parte decree shall not cause any prejudice to the parties rights. At the

same time, the plaintiff should be compensated in terms of cost for the

negligence on the part of the appellants.

In the result, the appeal is allowed.

The orders passed by the court below on I.A No.5598 of 2015 and I.A

No.5599 of 2015 in O.S No.964 of 2013 before the Principal Sub Judge,

Thrissur are hereby set aside on the condition that the appellant shall pay

cost of Rs.5,000/- (Rupees five thousand only) to the first respondent in two

weeks from today.

Parties shall appear before the court below on 5th April, 2021.

The court below shall dispose of the suit within a period of four

months after re-opening.

All pending interlocutory applications will stand closed.

A.HARIPRASAD, JUDGE

ZIYAD RAHMAN A.A., JUDGE

amk