Heather Luiz vs Nirene Dennis Luiz
2021 Latest Caselaw 22098 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
                THE HONOURABLE MR.JUSTICE V.G.ARUN
  FRIDAY, THE 5TH DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943
                     OP(C) NO. 1630 OF 2021
 IA 3687/2004 IN OS 652/1995 OF PRINCIPAL SUB COURT   THRISSUR
PETITIONER/S:

          HEATHER LUIZ
          AGED 62 YEARS
          W/O. GILROY, LUIZ ESTATE, KALAMASSERY, ERNAKULAM.
          BY ADVS.
          S.SREEKUMAR (SR.)
          P.MARTIN JOSE
          P.PRIJITH
          THOMAS P.KURUVILLA
          R.GITHESH
          HANI P.NAIR
          AJAY BEN JOSE
          MANJUNATH MENON
          HARIKRISHNAN S.


RESPONDENT/S:

    1     NIRENE DENNIS LUIZ
          W/O. LATE DENNIS STANLY PAUL LUIZ, IV/50, SOUTHERN
          COLLEGE OF ENGINEERING LUIZ NAGAR, CHALAKUDY, PIN-
          680 307.
    2     GENEVIEVE DORIS
          ANASTA SIA LUIZ, D/O. NIRENE DENNIS LUIZ, IV/50,
          SOUTHERN COLLEGE OF ENGINEERING LUIZ NAGAR,
          CHALAKUDY, PIN-680 307.
    3     JUANITA MARIETA LUIZ
          D/O. NIRENE DENNIS LUIZ, IV/50, SOUTHERN COLLEGE OF
          ENGINEERING LUIZ NAGAR, CHALAKUDY, PIN-680 307.
    4     JACQULINE NATALIA LUIZ
          D/O. NIRENE DENNIS LUIZ, IV/50, SOUTHERN COLLEGE OF
          ENGINEERING LUIZ NAGAR, CHALAKUDY, PIN-680 307.
    5     REGINA B FERNANDEZ
          D/O. LATE S.P.LUIZ, W/O. BOSEWELL FERNANDEZ, LUIZ
          ESTATE, KALAMASSERY, ERNAKULAM, PIN-682 015 NOW
          RESIDING AT REBERNS COTTAGE, NJRA 14A, DESHIYAKAVAL
          THOPPIL ROAD, NEAR NAVA NIRMAN PRIMARY SCHOOL ANNEXE
          THOPPIL ROAD, VAZHAKALA, THRIKAKKARA P.O., KOCHI-682
          021.
    6     KATHERINE LUIZ
          D/O. LATE EDWARD CHARLES LUIZ, SOUTHERN COLLEGE OF
          ENGINEERING LUIZ NAGAR, CHALAKUDY, PIN-680 307
          RESIDING AT NO.469, IST FLOOR, 7C MAIN, HRBR LAYOUT
 OP(C) No. 1630 of 2021

                                 -2-


             IST BLOCK KALYAN NAGAR, BANGALORE-560 043.
     7       MICHELLE LUIZ
             D/O. LATE EDWARD CHARLES LUIZ, IV/50, SOUTHERN
             COLLEGE OF ENGINEERING LUIZ NAGAR, CHALAKUDY, PIN-
             680 307, NOW RESIDING AT MICHELLE ESCRADER, ACVIR
             MARI GOLD APARTMENTS, GROUND FLOOR, MORRISSON 5TH
             STRRET, ALANDUR, CHENNAI, PIN-600 016.
     8       DOMINIC STANLEY
             EDWARD LUIZ, S/O. LATE EDWARD C LUIZ, SOUTHERN
             COLLEGE OF ENGINEERING LUIZ NAGER, CHALAKUDY, PIN-
             680 307, NOW RESIDING AT NO.469, IST FLOOR 7C MAIN,
             HRBR LAYOUT IST BLOCK, KALYAN NAGAR, BANGALORE-560
             043.
     9       CAROLINE LUIZ
             D/O. LATE EDWARD CHARLES LUIZ, SOUTHERN COLLEGE OF
             ENGINEERING LUIZ NAGAR, CHALAKUDY, PIN-680 307
    10       CHERUBINA KENDALL
             KENDALLA NOOK BROOKLANDS UPPER COONOOR NILGIRIS,
             TAMILNADU-643 101.
    11       ARUN KALE
             H/O SASSANDRA LUIZ, SOUTHERN COLLEGE OF ENGINEERING
             LUIZ NAGAR, CHALAKUDY, PIN-680 307,NOW RESIDING AT
             SHREE NILAYA, GF, 8TH MAIN, 5TH CROSS R.K. LAYOUT,
             PADMANABA NAGAR, BANGALORE-560 070
             BY ADVS.
             DEEPU LAL MOHAN
             TOM JOSE
             GEETHA JOB(OZHUKAYIL)
             HARSHADEV M.
             HASNA ASHRAF T.A
             TANYA TOM


         THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 27.10.2021,
THE COURT ON 05.11.2021 DELIVERED THE FOLLOWING:
 OP(C) No. 1630 of 2021

                                 -3-


                            JUDGMENT

Dated this the 5th day of November, 2021

The challenge in this original petition is

against Exts.P8 and P9 orders by which the

petitioner's applications for condation of delay

of 2316 days and for reviewing Ext.P3 order were

dismissed. The essential facts, leading up to the

impugned order, are as under;

The predecessors-in-interest of the

petitioner and respondents, namely, S.P.Luiz and

Dorris Luiz, had extensive properties in their

possession. S.P.Luiz and Dorris Luiz had five

children, Dennis, Edward, Cherubinina, Heather

(petitioner herein) and Regina. After the death

of their parents, the children partitioned some

of the properties as per document No.3346 of 1978

of SRO Edappally. Later, Dennis died and his wife

and children (respondents 1 to 4 herein) filed OP(C) No. 1630 of 2021

O.S.No.652 of 1995 before the Sub Court,

Irinjalakkuda praying for partition and separate

possession of their 1/4th share. In the suit,

Ext.P1 preliminary decree was passed, allowing

the plaintiffs to recover separate possession of

their 1/4th share, after partition of the plaint

schedule properties by metes and bounds. The

plaintiffs were also allowed to recover 1/4th

share from the mesne profits, after deducting the

amount, if any received by them. As per the

decree schedule, the immovable properties

comprise of item Nos.1 and 2 in A schedule, item

No.1 to 3 in B schedule, C schedule and D

schedule. E schedule is the list of the movables.

3. Based on the preliminary decree, the

proceedings for passing final decree commenced by

appointing an Advocate Commissioner to identify,

measure and demarcate A to D schedule properties.

Since C schedule property, having an extent of OP(C) No. 1630 of 2021

99.5 Acres in Kothamangalam Village, was found to

be in the possession of strangers and lying

without demarcating boundaries, the

identification and measurement of that property

turned out to be difficult and time consuming. As

a result, proceedings for partition of the other

properties were also getting delayed, in spite of

the measurement and demarcation being completed.

Hence, the plaintiffs filed I.A.No.5049 of 2013,

praying to exclude C schedule property from the

final decree proceedings, without prejudice to

their right to file a separate final decree

application with respect to C schedule in future.

None of the parties raised objection against the

prayer for excluding C schedule. Hence, the court

below allowed I.A.No.5049 of 2013 vide Ext.P3

order dated 30.06.2014. Much later, on

11.11.2020, the petitioner filed I.A.Nos.6 and 7

of 2020 seeking to review the order in OP(C) No. 1630 of 2021

I.A.No.5049 of 2013 after condoning the delay of

2316 days. Review was sought on the premise that

she was not served with notice in I.A.No.5049 of

2013 and therefore had no occasion to submit

objection to the prayer for excluding C schedule.

By Ext.P9 order, the court below dismissed the

application for condonation of delay, finding

that the petitioner had failed to offer

sufficient explanation for the inordinate delay

of 2316 days. Consequently, the review

application was also dismissed vide Ext.P8 order.

4. Heard Senior Counsel Sri.S.Sreekumar

appearing for the petitioner, M/s.Geetha

Job(Ozhukayil) and Deepulal Mohan appearing for

the respondents.

5. Learned Senior Counsel contended that the

order in I.A.No.5049 of 2013 is patently illegal,

inasmuch as the order was passed without serving

notice on the petitioner and without obtaining OP(C) No. 1630 of 2021

her consent. It is contended that the petitioner

has serious objection against exclusion of C

schedule property from the final decree

proceedings, since of that property having a

large extent, will impact the partition of the

other properties, which are of lesser extent and

an equitable partition will be possible only if C

schedule is included in the hotchpotch. The

finding that notice in I.A.No.5049 of 2013 is

seen to have been served on the the petitioner's

Counsel's Clerk is assailed by contending that,

certified copy of I.A.No.5049 of 2014 does not

contain any endorsement by the Clerk, of having

received the notice. Learned Senior Counsel also

drew attention to the admission in Ext.P7

objection filed by one of the defendants that,

the petitioner had not given any memo

acknowledging service of notice on her. According

to the Senior Counsel, interest of justice also OP(C) No. 1630 of 2021

demands that Ext.P3 order be set aside and the

entire properties be partitioned.

6. Sri.Deepulal Mohan, learned Counsel

appearing for some of the respondents contended

that the entire expenses for identification and

measurement of the decree schedule properties is

being incurred by the plaintiffs. In spite of

repeated attempts, the Commissioner could not

identify or demarcate C schedule, since almost

the entire property was encroached upon and

rendered unidentifiable. Faced with such a

situation, the first respondent had prayed to

exclude C schedule. It is contended that the

prayer is only to exclude C schedule for the time

being, so that partition of the other properties

can be completed without delay and final decree

proceeding with respect to C schedule only can be

continued thereafter. Absolutely no prejudice

will be caused to the petitioner by such OP(C) No. 1630 of 2021

procedure being adopted.

7. Smt. Geetha Jacob Ozhukyil, learned

Counsel for the other respondents vociferously

contended that the attempt of the petitioner is

to protract the proceedings further. It is

submitted that the petitioner is in possession

and enjoyment of almost all the properties in the

decree schedule and somehow wants to delay the

partition. It is pointed out that, with intent to

hasten the process of partition, the respondents

had even given up their claim for mense profits.

The measurement and demarcation of the other

properties having been completed, any

interference from this Court will cause extreme

prejudice to her clients, who are leading a hand

to mouth existence. Denying the contention that

the petitioner had not received notice in the

interlocutory applications, learned Counsel

submitted that proof of service of notice is OP(C) No. 1630 of 2021

available in the lower court records, which fact

had been verified by the Counsel personally.

8. In the impugned order, the court below,

after perusal of records, found that notice had

been served on the Clerk attached to the

petitioner's Counsel. Even though certified copy

of I.A.No.5049 of 2013 is made available in

support of the contention that there is no

endorsement by the Clerk regarding receipt of

notice, the document is of no avail as it does

not contain the endorsement made by, or on

behalf, of the other lawyers or clerks also.

Moreover, a perusal of Ext.P3 order shows that

the petitioner's Counsel was present before the

court on that day. Further, the court below has

observed that the petitioner was served with

notice in FDIA No.3687 of 2004 on 18.11.2004. As

such, she cannot feign ignorance of Ext.P3 order.

Circumstances being such, it is impossible to OP(C) No. 1630 of 2021

accept the contention that the petitioner was not

served with notice in I.A.No.4059 of 2013, as

also the averment that she was unaware of Ext.P3

order, for more than six years.

In the result, the original petition is

dismissed.

Sd/-

V.G.ARUN JUDGE Scl/ OP(C) No. 1630 of 2021

APPENDIX OF OP(C) 1630/2021

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF PRELIMINARY DECREE IN O.A.NO.652 OF 1995 DATED 13.1.2004 OF SUB COURT, IRINJALAKUDA.

Exhibit P2 TRUE COPY OF PETITION I.A.NO.5049 OF 2013 IN O.S.NO.652/1995 FILED BY THE RESPONDENTS 1 TO 4 BEFORE THE SUB COURT, IRINJALAKKUDA APPLICATION FOR MEASURING THE DECREE SCHEDULE PROPERTIES EXCLUDING 'C' SCHEDULE PROPERTY.

Exhibit P3 TRUE COPY OF ORDER IN I.A.NO.5049/2013 IN O.S.NO.652/1995 DATED 30.6.2014 OF ADDITIONAL SUB JUDGE, IRINJALAKUDA. Exhibit P4 TRUE COPY OF I.A.NO.6/2020 IN I.A.NO.5049/2013 IN I.A.NO.3687/2004 IN O.S.NO.652/1995 FILED BY THE PETITIONER BEFORE THE SUB COURT, IRINJALAKUDA.

Exhibit P5 TRUE COPY OF I.A.NO.7/2020 INI.A.NO.5049/2013 IN I.A.NO.3687/2004 IN O.S.NO.652/1995 FILED BY THE PETITIONER BEFORE THE SUB COURT, IRINJALAKKUDA Exhibit P6 TRUE COPY OF OBJECTION TO EXHIBIT P5 FILED BY THE RESPONDENTS 1 TO 4 BEFORE THE SUB COURT, IRINJALAKUDA.

Exhibit P7 TRUE COPY OF OBJECTION TO EXHIBIT P4 FILED BY THE 6TH RESPONDENT BEFORE THE SUB COURT, IRINJALAKUDA.

Exhibit P8 TRUE COPY OF ORDER IN I.A.NO.7/2020 IN I.A.NO.5049/2013 IN I.A.NO.3687/2004 IN O.S.NO.652/1995 OF SUB COURT, IRINJALAKUDA.

Exhibit P9 TRUE COPY OF ORDER IN I.A.NO.6/2020 IN I.A.NO.5049/2013 IN I.A.NO.3687/2004 IN O.S.NO.652/1995 OF SUB COURT, IRINJALAKUDA.