Mathai vs Minimol Mathew
2021 Latest Caselaw 9328 Ker

RSA 306/2021                             1/5



               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                      Present:
                THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

                Friday,the 19th day of March 2021/28th Phalguna, 1942
                            IA 1/2021 IN RSA 306/2021

           For information purpose only
AS No.194/2017 of the ADDITIONAL DISTRICT COURT - IV, KOTTAYAM
OS No.288/2013 of the MUNSIFF COURT, VAIKOM
PETITIONER/APPELLANT:
       MATHAI,AGED 68 YEARS,
       S/O MATHAI CHANDY, CHIRACKAL HOUSE, AYAMKUDI P.O, AYAMKUDI
       KARA, MUTTUCHIRA VILLAGE, VAIKOM TALUK.
RESPONDENTS/RESPONDENTS:
1.     MINIMOL MATHEW
       D/O MATHAI CHANDY, CHIRACKAL HOUSE, AYAMKUDI P.O, AYAMKUDI
       KARA, MUTTUCHIRA VILLAGE, VAIKOM TALUK, KOTTAYAM-686613. W/O
       RAO, NOW RESIDING AT ROOM NO.13/IX, MOULANA FLAT, OOTTY ROAD,
       PERINTHALMANNA, MALAPPURAM DISTRICT-679322.

2.     JAISAMMA MATHEW,
       D/O MATHAI CHANDY, PALLIYANTHARAYIL HOUSE, KURAVILANGADU
       P.O, AND VILLAGE, MEENANCHIL TALUK, KOTTAYAM-686633 ( OLD
       ADDRESS -CHIRACKAL HOUSE, AYAMKUDI P.O, AYAMKUDI KARA,
       MUTTUCHIRA VILLAGE, VAIKOM TALUK, KOTTAYAM-686613.)

3.     MARY
       W/O CHANDY MATHAI, CHIRACKAL HOUSE, AYAMKUDI P.O, AYAMKUDI
       KARA, MUTTUCHIRA VILLAGE, VAIKOM TALUK, KOTTAYAM-686613.

4.     MATHAI
       S/O CHANDY MATHAI, CHIRACKAL HOUSE, AYAMKUDI P.O, AYAMKUDI
       KARA, MUTTUCHIRA VILLAGE, VAIKOM TALUK, KOTTAYAM-686613.

5.     SHYJU,
       S/O CHANDY MATHAI, CHIRACKAL HOUSE, AYAMKUDI P.O, AYAMKUDI
       KARA, MUTTUCHIRA VILLAGE, VAIKOM TALUK, KOTTAYAM-686613.

6.     SHIJO,
       S/O CHANDY MATHAI, CHIRACKAL HOUSE, AYAMKUDI P.O, AYAMKUDI
       KARA, MUTTUCHIRA VILLAGE, VAIKOM TALUK, KOTTAYAM-686613.
 RSA 306/2021                                   2/5



7.     LIJO,
       S/O CHANDY MATHAI, CHIRACKAL HOUSE, AYAMKUDI P.O, AYAMKUDI
       KARA, MUTTUCHIRA VILLAGE, VAIKOM TALUK, KOTTAYAM-686613.

8.     LEENA,
       D/O CHANDY MATHAI, CHIRACKAL HOUSE, AYAMKUDI P.O, AYAMKUDI
       KARA, MUTTUCHIRA VILLAGE, VAIKOM TALUK, KOTTAYAM-686613.

           For information purpose only
         Application praying that in the circumstances stated in the affidavit filed therewith the
High Court be pleased to        stay the operation of the judgment dated 22.12.2020 in
AS.No.194/2017 on the file of Court of Additional District Judge-IV, Kottayam and judgment
dated 22.07.2017 in OS.No.288/2013 on the file of Court of Munsiff Court, Vaikom, pending
the disposal of RSA.


         This application coming on for orders upon perusing the application and the affidavit
filed in support thereof, and upon hearing the arguments of SRI. S.MOHAMMED AL RAFI,
Advocate for the petitioner, the court passed the following
                      N. ANIL KUMAR, J.

-------------------------------------------

R.S.A No.306 of 2021

-------------------------------------------- Dated this the 19th day of March, 2021.

     For information
                  O R Dpurpose
                        ER     only

Heard learned counsel for the appellant.

This R.S.A is admitted on the following substantial

questions of law.

1. Have not the Courts below committed illegality in

ordering partition of plaint schedule property in the

absence of proof regarding the exact extent,

boundaries and other particulars of the plaint schedule

property ?

2. Has not the 1st appellate court committed illegality in

allowing the amendment application filed by the 1 st

respondent amending the extent of plaint schedule

property altering the very nature of the case without

giving an opportunity for the appellant to substantiate

his case ?

3. Whether the 1st appellate court was justified in

allowing an amendment application filed by the 1 st R.S.A No.306 of 2021

respondent in an appeal filed by the appellant violating

the provisions contemplated under Order VI Rule 18 of the

Civil Procedure Code ?

For information purpose only

4. Has not the 1st appellate court committed illegality in

rejecting the application filed under Order 41 Rule 27 of

the Civil Procedure Code for accepting a document

executed by the father of the appellant as early as in

1963 ?

5. Since the amendment filed by the 1st respondent during

the trial of the case was allowed and the same was not

carried out within the permissible time, has not the 1 st

appellate court gone wrong in allowing the second

amendment application for the very same purpose ?

I.A.No.1 of 2021

Heard the learned counsel for the appellant.

The operation of the judgment and decree dated

22.12.2020 in A.S.No.194 of 2017 on the file of the Additional

District Court - IV, Kottayam, which arose from the judgment

and decree dated 22.07.2017 in O.S No.288 of 2013 on the files R.S.A No.306 of 2021

of the Munsiff court, Vaikom stands stayed for a period of three

months.

R.S.A For information purpose only Issue notice.

Post after summer vacation.

Sd/-

N.ANIL KUMAR JUDGE

DK

/true copy/ Sd/- ASSISTANT REGISTRAR