Ayisha vs Parappur Valappil Fathimma
2021 Latest Caselaw 20797 Ker

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM


                                   PRESENT

                     THE HONOURABLE MR.JUSTICE V.G.ARUN

         WEDNESDAY, THE 6TH DAY OF OCTOBER 2021 / 14TH ASWINA, 1943

                           OP(C) NO. 1865 OF 2018

  AGAINST THE ORDER/JUDGMENT IN CMA 5/2015 OF ADDITIONAL DISTRICT COURT,
                               TIRUR, MALAPPURAM

         OS 197/2006 OF MUNSIFF MAGISTRATE COURT,PONNANI, MALAPPURAM

PETITIONER/S:




             AYISHA
     1
             AGED 52 YEARS
             AGED 52 YEARS, W/O. ABOOBACKER, KORPULLI HOUSE,
             NANNAMMUKKU AMSOM, DESOM AND POST,PONNANI TALUK,
             MALAPPURAM DISTRICT.


             SUBAIR
     2
             AGED 38 YEARS, S/O. ABOOBACKER,KORPULLI HOUSE,
             NANNAMMUKKU AMSOM, DESOM AND POST,PONNANI TALUK,
             MALAPPURAM DISTRICT.


             SUNEERA
     3
             AGED 32 YEARS, D/O. ABOOBACKER,KORPULLI HOUSE,
             NANNAMMUKKU AMSOM, DESOM AND POST,PONNANI TALUK,
             MALAPPURAM DISTRICT.


             SAKEER
     4
             AGED 28 YEARS, S/O. ABOOBACKER,KORPULLI HOUSE,
             NANNAMMUKKU AMSOM, DESOM AND POST,PONNANI TALUK,
             MALAPPURAM DISTRICT.

             BY ADVS.
             SRI.K.P.SUDHEER
             SRI.J.RAMKUMAR
 OP(C) NO. 1865 OF 2018
                                        2

RESPONDENT/S:




            PARAPPUR VALAPPIL FATHIMMA
     1
            AGED 50 YEARS, W/O. KORPULLI ALAVI, NANNAMUKKU
            AMSOM,THEKKUMMURI DESOM, PONNANI TALUK, MALAPPURAM
            DISTRICT,PIN 679 575.


            SALEENA
     2
            AGED 28 YEARS, D/O. LATE ALAVI,KORPULLI HOUSE, NANNAMUKKU
            AMSOM,THEKKUMMURI DESOM, PONNANI TALUK, MALAPPURAM
            DISTRICT,PIN 679 575.


            SHARJIHANA
     3
            AGED 27 YEARS, D/O. LATE ALAVI,KORPULLI HOUSE, NANNAMUKKU
            AMSOM,THEKKUMMURI DESOM, PONNANI TALUK, MALAPPURAM
            DISTRICT,PIN 679 575.


            SABNA
     4
            AGED 24 YEARS, D/O. LATE ALAVI,KORPULLI HOUSE, NANNAMUKKU
            AMSOM,THEKKUMMURI DESOM, PONNANI TALUK, MALAPPURAM
            DISTRICT,PIN 679 575.


     5      SAILAAGED 21 YEARS DO. LATE ALAVI
            KORPULLI HOUSE, NANNAMUKKU AMSOM,THEKKUMMURI DESOM,
            PONNANI TALUK, MALAPPURAM DISTRICT,PIN 679 575.


     6      SAJNA AGED 20 YEARS DO. LATE ALAVI
            KORPULLI HOUSE, NANNAMUKKU AMSOM,THEKKUMMURI DESOM,
            PONNANI TALUK, MALAPPURAM DISTRICT,PIN 679 575.

            BY ADVS.
            SRI.T.I.ABDUL SALAM
            SMT.K.R.MONISHA



THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 06.10.2021, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
 OP(C) NO. 1865 OF 2018
                                   3




                             JUDGMENT

Dated this the 6th day of October 2021

Petitioners are the legal heirs of the 3rd defendant in O.S

No197 of 2006 on the files of the Munsiff Magistrate Court,

Ponnanni. The suit was filed by the predecessor in interest of the

respondents seeking partition of three items of properties. The

3rd defendant entered appearance and filed written statement

contending that he is the absolute owner in possession of the

properties, having been issued with purchase certificate with

respect to the properties sought to be partitioned. The 3rd

defendant was bedridden at the time when the suit was listed for

trial and the counsel reported no instruction, resulting in the suit

being decreed ex parte. The third defendant filed Exts. P4 and P5

applications for setting aside the exparte decree, after condoning

the delay of 640 days in filing the application. By Ext.P6 order,

the trial court dismissed the application finding that the cardiac

ailment, projected as the reason for petitioner's absence before

the trial court, was not convincing or sufficient to condone the OP(C) NO. 1865 OF 2018

delay of 640 days. The trial court noted that despite receipt of

summons in the final decree proceedings, the third defendant

had not entered appearance.

2.Aggrieved by Ext.P6 order, the third defendant filed

Ext.P8 Civil Miscellaneous Appeal. Pending the appeal the third

defendant died and the petitioners were impleaded, being his

legal representatives. After impleadment, the petitioners filed

Ext. P7 application, seeking to produce the medical records of

the third defendant to prove that he was suffering from cardiac

ailments during the relevant period. By Ext.P8 common order,

the appellate court dismissed Ext.P7 application and the appeal.

Aggrieved, this original petition is filed.

3.Sri. K.P Sudheer, learned counsel for the petitioner

submitted that the third defendant had a valid defence in the suit

and had offered an acceptable explanation for his absence, as

also the delay of 640 days in filing the application for setting

aside the ex parte decree. It is submitted that unless the exparte

decree is set aside, the petitioners will be thrown out from their OP(C) NO. 1865 OF 2018

property, which has been their ownership and possession for

more than thirty years. Reliance in placed on the decision of the

Honourable Supreme Court in Robin Thapa v. Rohit Dora [2019)

7 SCC 359] to contend that, ordinarily a litigation should not be

terminated by default either of the plaintiff or the defendant and

the cause of justice requires that, as far as possible, adjudication

should be on merits. While agreeing that the 3rd defendant

should have been more vigilant in contesting the suit, learned

counsel would submit that the third defendant had an acceptable

explanation for his absence and the delay. It is submitted that

the medical records produced in the CMA amply proves that the

third defendant was under intensive treatment during the

relevant period and the prejudice caused to the respondents can

be set off by payment of adequate compensation.

4.Smt. Monisha K.R, learned counsel for the respondents

submitted that the third defendant had deliberately kept away

from the court in an attempt to protract the proceedings. It is

pointed out that the third defendant was being represented by OP(C) NO. 1865 OF 2018

the counsel appearing for the other defendants and therefore, he

cannot feign ignorance about the proceedings. Learned counsel

also submitted that in spite of the exparte decree, the petitioners

constructed a building in the decree schedule property. Finally it

is contended that reopening of the suit would cause extreme

prejudice to the respondents and that, rather than being

compensated in terms of money, respondents want the decree in

their favour to attain finality at the earliest.

5. No doubt, the requisite evidence to prove the medical

condition of the third defendant was not produced before the

trial court. At the same time, the fact that the 3rd defendant was

suffering from cardiac problems and had succumbed to the

illness later, cannot be disputed. The petitioners are residing in

the plaint schedule property and contend that the property

belong to them absolutely. In such circumstances it is only

appropriate to afford the petitioners an opportunity to contest

the suit on merits. In arriving at this conclusion, I am guided by

the decision of the Honourable Supreme Court in Robin Thapa v. OP(C) NO. 1865 OF 2018

Rohit Dora (Supra). Of course, the respondents have to be

compensated for the hardship caused to them.

In the result, the original petition is allowed, Exhibits P6

and P8 orders are set aside. I.A Nos. 819 and 820 of 2014 in O.S

No. 197 of 2006 are allowed, subject to the petitioners paying

Rs. 25,000/-(Rupees Twenty Five Thousand Only) as cost to the

respondents, through their counsel in this original petition,

within a period of six weeks. On production of the receipt

evidencing payment of cost along with copy of this judgment, the

trial court shall proceed with the suit and take earnest efforts to

dispose of the suit within six months.

Sd/-

V.G ARUN JUDGE SJ OP(C) NO. 1865 OF 2018

APPENDIX OF OP(C) 1865/2018

PETITIONER EXHIBITS

TRUE COPY OF PLAINT DATED 12-10-2006 IN O.S NO. EXHIBIT P1 197/2006 ON THE FILE OF THE MUNSIFF-MAGISTRATE COURT, PONNANI.

TRUE COPY OF WRITTEN STATEMENT DATED 3-2-2007 IN O.S NO. 197/2006 ON THE FILE OF THE MUNSIFF- EXHIBIT P2 MAGISTRATE'S COURT, PONNANI FILED BY THE ORIGINAL DEFENDANT ALONG WITH OTHER DEFENDANTS.

TRUE COPY OF JUDGMENT DATED 25-09-2012 IN O.S NO. EXHIBIT P3 197/2006 PASSED BY MUNSIFF-MAGISTRATE'S COURT, PONNANI.

TRUE COPY OF I.A NO. 819/2014 IN O.S NO. 197/06 OF THE HON'BLE MUNSIFF COURT, PONNANI TO CONDONE THE EXHIBIT P4 DELAY IN FILING THE PETITION TO SET ASIDE THE EX- PARTE DECREE.

TRUE COPY OF I.A NO. 820/2014 IN O.S NO. 197/06 OF EXHIBIT P5 THE HON'BLE MUNSIFF COURT, PONNANI TO SET ASIDE THE EX-PARTE DECREE 28-09.

TRUE COPY OF COMMON ORDER DATED 25/11/2014 IN I.A EXHIBIT P6 NO. 819/2014 AND IN I.A.820/2014 IN O.S NO. 197/06 PASSED BY MUNSIFF-MAGISTRATE'S COURT, PONNANI

TRUE COPY OF ORDER DATED 14-3-2018 IN IA NO. 5270/2017 EXHIBIT P7 IN CMA NO. 5/2015 PASSED BY ADDITIONAL DISTRICT JUDGE'S COURT, TIRUR.

TRUE COPY OF JUDGMENT DATED 14-3-2018 IN CMA NO. 5/2015 EXHIBIT P8 PASSED BY ADDITIONAL DISTRICT JUDG'ES COURT, TIRUR. OP(C) NO. 1865 OF 2018

TRUE COPY OF E.P. NO. 107/2019 IN FDIA NO. 193/2013 IN EXHIBIT P9 O.S. NO. 197/2006 ON FILES OF MUNSIFF - MAGISTRATE'S COURT, PONNANI.

TRUE COPY OF SUMMONS DATED 3.8.2019 ISSUED BY MUNSIFF - EXHIBIT P10 MAGISTRATE'S COURT, PONNANI IN EXHIBIT P9 EXECUTION PETITION.

TRUE COPY OF E.A 4/2020 DATED 17.11.2020 IN E.P NO 107/2019 IN FDIA NO.193/2013 IN O.S NO 197/2006 ON THE EXHIBIT P11 FILES OF MUNSIFF- MAGISTRE'S COURT, PONANI ALONG WITH SUMMONS

RESPONDENT'S EXHIBITS

EXHIBIT R1(A) THE TRUE PHOTOCOPY OF THE FINAL DECREE DATED 18.02.2015