Kerala High Court
Udayamperoor Grama Panchayath vs Antony M.Vazhathra on 23 June, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 23RD DAY OF JUNE 2022 / 2ND ASHADHA, 1944
WP(C) NO. 3054 OF 2013
PETITIONERS:
1 UDAYAMPEROOR GRAMA PANCHAYATH
REPRESENTED BY ITS SECRETARY
UDAYAMPEROOR P.O ERNAKULAM DISTRICT
2 THE SECRETARY
UDAYAMPEROOR GRAMA PANCHAYATH
UDAYAMPEROOR P.O ERNAKULAM DISTRICT
BY ADVS.
SMT.C.G.BINDU
SMT.C.G.AJITHA
RESPONDENTS:
1 ANTONY M.VAZHATHRA
RESIDING AT ANJILIKKAL,
VAZJHATHARAYIL MANAKKUNNAM
REPRESENTED BY POWER OF ATTORNEY HOLDER
VARGHESE S/O.MATHEW RESIDING AT ANJILIKKAL
VAZHATHARAYIL HOUSE MANAKUNNAM,
ERNAKULAM DISTRICT
2 JACOB DIARISH
S/O.K.L.THOMAS
RESIDING AT KALLUMKARTHARA
MARADU P.O ERNAKULAM 682304
3 MARTIN K.MATHEW
S/O.MATHEW RESIDING AT MATIYEKHAKAL HOUSE
MARADU P.O ERNAKULAM 682304
BY ADVS.
SRI.P.MARTIN JOSE
SRI.P.PRIJITH
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 23.06.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C).No.3054/2013
2
P.V.KUNHIKRISHNAN, J.
--------------------------------
W.P.(C).No.3054 of 2013
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Dated this the 23rd day of June, 2022
JUDGMENT
This writ petition is filed with following prayers:
i. Call for the records leading to the passing of
Ext.P5 order and quash the same by issuing a writ
of certiorari or other appropriate writ, order or
direction.
ii. Issue a writ in the nature of mandamus directing
the Tribunal for Local Self Government
Institutions, Thiruvananthapuram to reconsider
Ext.P4 application and allow the same.
iii. Call for the records leading to the passing of
Ext.P3 order and quash the same by issuing a writ
of certiorari or other appropriate writ, order or
direction.
iv. Issue such other writ, order or direction as this
honourable court deems fit and proper in the
circumstances of the case.
(SIC)
2. Respondents approached the Tribunal for Local Self
Government Institutions with an appeal from an order
rejecting a development permit issued by the petitioner
W.P.(C).No.3054/2013
Panchayat. It is the case of the petitioner that a written
statement was filed before the Tribunal before the date fixed
for hearing. But according to the petitioner, the Tribunal on a
hasty manner ignored to look into the contentions placed by
the Panchayat and has passed an order allowing the appeal
holding the Panchayat ex-parte. The application to set aside
the ex-parte order has been rejected stating that it is delayed
by 3 days. Hence this writ petition.
3. Heard the learned counsel for the petitioner and
the learned counsel for the respondents.
4. This Court considered Exts.P3 and P5 orders. It
will better to extract the relevant portion of Ext.P5:
"5. The Point
The first hearing of the appeal was on 17.7.2012. On
that day it was noticed that the respondents were
served with notice and since the respondents were
not present on that day before the Tribunal they
were called absent and set exparte. The case was
then posted to 2.8.2012 for hearing which was
adjourned to 22.8.2012 and then to 25.8.2012 on the
request of the appellant and on 25.8.2012 the
appellants were heard and the case was taken for
orders to 27.8.2012. On that day I pronounced order
allowing the appeal.
W.P.(C).No.3054/2013
6. It is true it was noticed by me subsequently at the
time of preparing the judgment the respondents have
sent a written statement along with certain
documents by post which reached this Tribunal on
11.7.2012. I stated that the practice of the
respondents sending the written statement like that
and not appearing before the court was not correct
and hence I have not accepted the said written
statement. Hence I did not even suo moto set aside
the order of exparte of the respondents.
7. The petitioner would say that they came to know
about the order only on 14.9.2012. Article 123 of the
Limitation Act reads as below:
123 To set aside a Thirty The date of the
decree passed ex days decree or where
parte or to re-hear the summons or
an appeal decreed notice was not duly
or heard ex parte. served, when the
Explanation,- For applicant had
the purpose of this knowledge of the
article, substituted decree.
service under Rule
20 of Order V of
the Code of Civil
Procedure, 1908
(5 of 1906) shall
not be deemed to
be due service.
8. An interpretation to the said provision of law
would show that the date of knowledge of the order
is sufficient to reckon the period of 30 days. If so,
14.9.2012 on which date the petitioners claimed to
have received a copy of the order of this Tribunal
W.P.(C).No.3054/2013
could be taken as the date from which the period of
30 days could be worked out. The period of 30 days
from that date had expired on 14.10.2012. The
petition for setting aside the exparte order and to re-
hear the appeal should have been filed on or before
14.10.2012.
9. However, in this case, even though the affidavit
was prepared on 11.10.2012 and the petition was
signed by the counsel on the same date the petition
along with the affidavit was files in this Tribunal only
on 17.10.2012.
10. Thus, there occurred a delay of 3 days in
preferring the IA. No application is filed seeking to
condone the delay. In that view of the matter I
perfectly agree with the respondents in the L.A.
(appellants) that the LA. is hopelessly barred by
limitation.
11. Matter being as above, the I.A. cannot be
entertained. It is to be held then that the petitioner
has not made out any sufficient grounds for allowing
the I.A.
In the result, the 1.A. is dismissed."
I see no reason to interfere with the above order. No
other points are raised in this writ petition.
The writ petition fails and the same is dismissed.
sd/-
P.V.KUNHIKRISHNAN
JV JUDGE
W.P.(C).No.3054/2013
APPENDIX OF WP(C)3054/2013
PETITIONER EXHIBITS
EXHIBIT P1 COPY OF THE HEARING NOTICE ISSUED TO
THE PANCHAYAT DATED 22.6.2012
EXHIBIT P2 COPY OF THE WRITTEN STATEMENT
SUBMITTED BY THE PANCHAYAT DATED
09.07.2012
EXHIBIT P3 COPY OF THE ORDER IN APPEAL
NO.466/2012 ON THE FILE OF HTE
TRIBUNAL FOR LOCAL SELF GOVERNMENT
INSTITUTIONS, THIRUVANANTHAPURAM DATED
27.8.2012
EXHIBIT P4 COPY OF THE APPLICATION SUBMITTED BY
THE PANCHAYAT TO SET ASIDE THE EX
PARTE ORDER AND REHEAR HTE MATTER
DATED 11.10.2012
EXHIBIT P5 COPY OF THE ORDER IN IA NO.1602/2012
IN APPEAL NO.466/2012 ISSUED BY THE
TRIBUNAL DATED 04.12.2012
