Kiran John Rajan vs Sakhi Philip
2022 Latest Caselaw 6985 Ker

OP(C) Nos.1147 & 1734 OF 2021
                                1

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
               THE HONOURABLE MR.JUSTICE C.S.DIAS
    FRIDAY, THE 17TH DAY OF JUNE 2022 / 27TH JYAISHTA, 1944
                    OP(C) NO. 1147 OF 2021
AGAINST THE ORDER DATED 9.3.2021    IN I.A. 1/2021 IN OS 48/2021
                    OF SUB COURT, ERNAKULAM
PETITIONER/IMPLEADING PETITIONER IN I.A NO.1/2021 IN O.S.
48/2021

    1     KIRAN JOHN RAJAN,
          AGED 33 YEARS
          S/O.LATE C.J.RAJAN, CHERUTHAZHOOR HOUSE,
          KANJIRAMATTOM P.O., ERNAKULAM DISTRICT-682 315.

          BY ADV V.PHILIP MATHEW


RESPONDENTS/PETITIONER AND RESPONDENTS 1 TO 6 AND 8 TO 10 IN

I.A. NO.1/2021 AND PLAINTIFF AND DEFENDANTS 1 TO 6 AND 8 TO 10 IN O.S. 48/2021:

    1     SAKHI PHILIP,
          AGED 55 YEARS

W/O.PRATEEP PHILIP, 412 MODERN LAY OUT, 12 AVENUE, UTHANDI, CHENNAI, TAMIL NADU-600 119.

    2     PRIYA JACOB,
          AGED 50 YEARS

W/O.JACOB VARGHESE, FLAT NO.12B, SOORYA ENCLAVE APARTMENTS, OPP.KENDREEYA VIDHYALAYA, GANDHI NAGAR ROAD, KADAVANTHRA, ERNAKULAM-682 020.

    3     SWAPNA GEORGE,
          AGED 46 YEARS

W/O.RONY THOMAS, 1243, PLUM VALLEY DR.FRISCO, TEXAS- 75034, U.S.A.

    4     LETA MATHEW,
          AGED 42 YEARS

D/O.LATE C.J.GEORGE, 16 BELLAMAIE DIRVE, CSTLE HILL, NSW 2154, AUSTRALIA.

 OP(C) Nos.1147 & 1734 OF 2021


    5       PREETHA THARAKAN,
            AGED 40 YEARS

D/O.LATE C.J.GEORGE, FLAT NO.7A, LAGOON APARTMENT, CHILAVANNUR, ERNAKULAM-682 020.

    6       BABU GEORGE,
            AGED 56 YEARS

S/O.C.J.GEORGE, DOOR NO.C.C. 39/5270, CHERUTHAZHOOR, PLOT NO.367, PANAMPILLY NAGAR, ERNAKULAM-682 036.

7 M/S. GEO TECH FOUNDAITONS AND CONSTRUCTIONS, 8TH FLOOR, KSHB BUILDING, PANAMPILLY NAGAR, ERNAKULAM-682 036, REPRESENTED BY ITS MANAGING PARTNER, MR.BABU C.GEORGE, S/O.LATGE C.J.GEORGE, CHERUTHAZHOOR HOUSE, PANAMPILLY NAGAR.

8 PRINCIPAL SECRETARY, DEPARTMENT OF FINANCE, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM-695 001.

9 PROJECT DIRECTOR, KERALA STATE TRANSPORT PROJECT, TC 339, JAGAD BUILDING, KESTON ROAD, NANDANKOCE, KAVADIYAR P.O., THIRUVANANTHAPURAM-695 003.

    9       ELSY,
            AGED 62 YEARS

W/O.LATE C.J.GEORGE, CHERUTHAZHOOR HOUSE, PANAMPILLY NAGAR, ERNAKULAM-682 036.

BY ADVS.

MATHEW GEORGE VADAKKEL SHIJU VARGHESE

THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 17.06.2022, ALONG WITH OP(C).1734/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

OP(C) Nos.1147 & 1734 OF 2021

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS FRIDAY, THE 17TH DAY OF JUNE 2022 / 27TH JYAISHTA, 1944 OP(C) NO. 1734 OF 2021 AGAINST THE ORDER IN IA 4/2021 IN OS 48/2021 OF II ADDITIONAL SUB COURT,ERNAKULAM PETITIONER//PLAINTIFFS:

SAKHI PHILIP AGED 58 YEARS W/O PRATEEP PHILIP, 412 MODERN LAY OUT, 12 AVENUE, UTHANDI, CHENNAI , TAMIL NADU, PIN-600 119.

BY ADVS.

MATHEW GEORGE VADAKKEL SHIJU VARGHESE

RESPONDENT/ADDL.11TH DEFENDANT:

1 KIRAN JOHN RAJAN S/O LATE MR C.J. RAJAN, CHERUTHAZHOOR (H) KANJIRAMATTOM P.O.ERNAKULAM DISTRICT PIN-682 315.

    2     PRIYA JACOB,
          AGED 50 YEARS

W/O JACOB VARGHESE, FLAT NO 12B, SOORYA ENCLAVE APARTMENTS, OPP KENDREEYA VIDHYALAYA, GANDHI NAGAR ROAD, KADAVANTHARA, ERNAKULAM, PIN-682 020.

    3     SWAPNA GEORGE,
          AGED 46 YEARS

W/O RONY THOMAS, 1243, PLUM VALLEY, DR.FRISCO, TEXAS- 75034, UNITED STATES OF AMERICA.

    4     LETA MATHEW,
          AGED 42 YEARS

D/O LATE C.J. GEORGE 16, BELLAMARIE DRIVE, CSTLE HILL, NSW-2154, AUSTRALIA.

 OP(C) Nos.1147 & 1734 OF 2021


    5       PREETHA THARAKAN,
            AGED 40 YEARS

D/O LATE C.J. GEORGE, FLAT NO 7A, LAGOON APARTMENT, CHILAVANNUR, ERNAKULAM, PIN-682 020.

    6       BABU GEORGE,
            AGED 56 YEARS

S/O C.J. GEORGE, DOOR NO C.C 39/5270, CHERUTHAZHOOR, PLOT NO 367, PANAMPILLY NAGAR, COCHIN, PIN-682 036.

7 M/S GEO-TECH FOUNDATIONS AND CONSTRUCTIONS 8TH FLOOR KSHB, BUILDING, PANAMPILLY NAGAR, RNAKULAM,PIN-682 036, REPRESENTED BY TS MANAGING PARTNER MR. BABU C GEORGE, S/O LATE C.J.GEORGE, CHERUTHAZHOOR HOUSE, PLOT NO 367, PANAMPILLY NAGAR, COCHIN, PIN-682 036.

8 MR. C.J. RAJAN, S/O JOSEPH CHERUTHAZHOOR HOUSE, KANJIRAMATTOM P.O.ERNAKULAM DISTRICT, PIN-682 315 (DIED)

9 PRINCIPAL SECRETARY DEPARTMENT OF FINANCE , GOVT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.

10 PROJECT DIRECTOR KERALA STATE TRANSPORT PROJECT, TC 399., JAGAD BUILDING, KESTON ROAD, NANDANKODE, KAVADIYAR P.O.THIRUVANANTHAPURAM PIN 695 003.

    11      ELSY,
            AGED 62 YEARS

W/O LATE C.J. GEORGE, CHERUTHAZHOOR HOUSE, PANAMPILLY NAGAR, ERNAKULAM, PIN-682 036.

BY ADV V.PHILIP MATHEW

THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 17.06.2022, ALONG WITH OP(C)1147/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

OP(C) Nos.1147 & 1734 OF 2021

COMMON JUDGMENT

As the parties are same in both these original

petitions, they have been disposed of by this common

judgment. O.P. (C) No.1147/2021 is filed by the impleading

petitioner in I.A 1/2021 in O.S.48/2021 on the file of the

Court of the Subordinate Judge, Ernakulam, challenging

the order dated 9.3.2021 in I.A No.1/2021 in the above suit

condoning the delay of 1092 days in representing the

plaint. O.P(C) No.1734/2021 is filed by the plaintiff in the

suit challenging the order dated 16.9.2021 in I.A 4/2021

passed in the suit permitting the impleadment of the 1 st

respondent in the above original petition as a party in the

suit. The parties are, for the sake of convenience, referred

to as per their status and pleadings in OP(C) 1734/2021,

wherever the context so requires.

2. The petitioner is the plaintiff in Ext.P1 plaint filed for

partition. She is one of the daughters of late C.J.George.

The respondents 2 to 7 are her siblings and the 8 th OP(C) Nos.1147 & 1734 OF 2021

respondent is the partnership firm where the deceased

C.J.George was the Managing Partner. The 1st respondent,

the son of the deceased 7th defendant in the suit, had filed

Ext.P4 application to get himself impleaded in the suit. The

same was opposed by the petitioner who filed Ext.P5

objection. The court below by the impugned Ext.P7 order

has permitted the impleadment of the 1st respondent. The

petitioner assails Ext.P7 order in O.P (C ) 1734/2021.

3. The 1st respondent has filed OP (C) 1147/2021,

challenging Ext.P3 order on the ground that the court

below has by a cryptic one-liner and without sufficient

cause condoned the delay of 1092 days in representing the

plaint.

4. Heard; Sri.Shiju Varghese, the learned appearing

for the petitioner in OP(C) No.1734/021, Sri.Gibi.C.George,

the learned counsel appearing for the petitioner in OP(C)

No.1147/2021 and Sri.V.Philip Mathew, the learned counsel

appearing for the respondents in the above original

petitions.

OP(C) Nos.1147 & 1734 OF 2021

5. The point that arises for consideration in these

original petitions is whether Ext.P7 order in O.P.

1734/2021 and Ext.P3 order in O.P(C) No.1147 of 2021 are

sustainable in law.

6. The specific case of the 1st respondent in Ext.P4

application was that he is the son of the deceased

C.J.Rajan, who was the 7th defendant in the suit. The suit

was filed without disclosing the death of Sri.C.J.Rajan.

Material facts have been suppressed in Ext.P1 plaint. The

1st respondent has a right over the properties scheduled in

the plaint. His father had an interest in the firm, which the

1st respondent is entitled to inherit. The 1 st respondent is

interested in the outcome of the suit. If the suit is decided

in his absence, it would prejudicially affect his interest.

7. Even though the application was resisted by the

respondents, the court below on considering the fact that

the 1st respondent is none other than the son of the

deceased 7th defendant in the suit, deemed it appropriate

that the 1st respondent should be impleaded as a party in OP(C) Nos.1147 & 1734 OF 2021

the suit. I do not find any irregularity or illegality in Ext.P7

order, permitting the impleadment of the 1 st respondent,

who is undisputedly a legal representative of the deceased

7th defendant in the suit and has a right to be on the party

array. In fact, the plaintiff is obliged to bring the legal

representatives of the deceased 7th defendant on record on

her motion, rather than he requesting to be brought on

record. There is no illegality in Ext.P7 order.

8. The 1st respondent has challenged Ext.P3 order,

whereby the court below has condoned the representation

delay of 1092 days in representing Ext.P1 plaint. The suit

was filed well within the period of limitation. The

petitioner has specifically pleaded the reasons that

prevented her from representing the plaint within the

stipulated time period. I find the petitioner has stated

sufficient reasons in the affidavit in support of Ext.P2

application to condone the delay. It was after considering

the above aspects, especially since the matter was

concerning the court and the plaintiff, the court below OP(C) Nos.1147 & 1734 OF 2021

passed Ext.P3 order and condoned the delay I do not find

any illegality in the court below not giving elaborate

reasons for condoning the delay. There is no merit in the

original petitions.

In the result, both the original petitions are

dismissed.

ma/17.6.2022 Sd/- C.S.DIAS, JUDGE OP(C) Nos.1147 & 1734 OF 2021

APPENDIX OF OP(C) 1734/2021

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE PLAINT IN OS NO 48/2021 DATED 17.2.2018

Exhibit P2 TRUE COPY OF THE WILL DEED DATED 22.10.2013

Exhibit P3 TRUE COPY OF THE IA NO 3/221 ATED 3.3.2021

Exhibit P4 TRUE COPY OF THE IA NO 4/2021 DATED 29.3.2021

Exhibit P5 TRUE COPY OF THE OBJECTIONS IN IA NO 4/2021 DATED 18.9.2021

Exhibit P6 TRUE COPY OF THE IA NO 6/2021 DATED 19.8.2021

Exhibit P7 TRUE COPY OF THE ORDER IN IA NO 4/2021 DATED 16.9.2021 OP(C) Nos.1147 & 1734 OF 2021

APPENDIX OF OP(C) 1147/2021

PETITIONER EXHIBITS

Exhibit P1 COPY OF THE PLAINT IN OS NO.48/2021.

Exhibit P2 COPY OF IA NO.1/2021 FILED BY THE FIRST RESPONDENT.

Exhibit P3 COPY OF ORDER DATED 09.03.2021 PASSED BY THE SUB COURT, ERNAKULAM IN IA NO.1/2021.

Exhibit P4 COPY OF IA NO.3/2021 FILED BY THE FIRST RESPONDENT IN OS NO.48/2021.

Exhibit P5 COPY OF THE LETTER DATED 07.01.2021 ISSUED FROM SOUTH INDIAN BANK.

Exhibit P6 COPY OF IA NO.4/2021 FILED BY THE PETITIONER IN OS NO.48/2021.