Kerala High Court
Yakkob vs Sumathi (Died) on 24 May, 2024
Author: Kauser Edappagath
Bench: Kauser Edappagath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
FRIDAY, THE 24TH DAY OF MAY 2024 / 3RD JYAISHTA, 1946
OP(C) NO. 2933 OF 2015
AGAINST THE ORDER DATED 10.07.2015 IN I.A. NO. 1150/2011 IN
OS NO.190 OF 1995 OF ASSISTANT SESSIONS COURT/SUB COURT /
COMMERCIAL COURT, MAVELIKKARA
PETITIONERS/PETITIONERS/DEFENDANTS:
1 YAKKOOB (DIED)
AGED 55 YEARS
S/O. VAVAKUNJU, RESIDING AT PUTHEN PUTHUVEL
CHIRAKKADAVAM MURI, KAYAMKULAM VILLAGE FROM
KADASSERITHARAYIL, KEERIKKADU SOUTH MURI,
KEERIKKADU VILLAGE.
2 NAZEEMA
AGED 50 YEARS
W/O. YAKKOOB, RESIDING AT PUTHEN PUTHUVEL,
CHIRAKKADAVAM MURI, KAYAMKULAM VILLAGE.
3 NAZEEM
S/O YAKKOOB, AGED 30 YEARS, RESIDING AT PUTHEN
PUTHUVEL CHIRAKKADAVAM MURI, KAYAMKULAM
4 NAJEEMA
D/O YAKKOOB, AGED 29 YEARS, RESIDING AT PUTHEN
PUTHUVEL CHIRAKKADAVAM MURI, KAYAMKULAM
[ADDITIONAL P3 AND P4 A/W P2 WHO IS ALREADY IN
THE PARTY ARRAY ARE IMPLEADED AS THE LRS OF THE
DECEASED FIRST PETITIONER VIDE ORDER DATED
18.03.2019 IN IA 1/2019]
BY ADV
SRI.A.SHAFEEK (KAYAMKULAM)
RESPONDENTS/RESPONDENTS:
1 SUMATHI(DIED)
W/O. NARAYAN PANICKER, VAIKKATHU VADAKKATHIL FROM
KANDATHIL VADAKKATHIL, KEERIKKADU SOUTH MURI,
KEERIKKADU VILLAGE-690508.
2
OP(C) No. 2933 of 2015 &
OP(C) No. 2934 of 2015
2 LEELA
D/O.SUMATHI, VAIKKATHU VADAKKATHIL, FROM
KANDATHIL VADAKKATHIL, KEERIKKADU SOUTH MURI,
KEERIKKADU VILLAGE-690508.
3 GEETHA
D/O. SUMATHI, VAIKKATHU VADAKKATHIL, FROM
KANDATHIL VADAKKATHIL, KEERIKKADU SOUTH MURI,
KEERIKKADU VILLAGE-690508.
[R2 AND R3 ARE RECORDED AS THE LRS OF DECEASED R1
VIDE ORDER DATED 30/09/2023]
BY ADVS.
MATHEW kURIAKOSE
RENJIT GEORGE
K.SHAJ
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
24.05.2024, ALONG WITH OP(C).2934/2015, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
3
OP(C) No. 2933 of 2015 &
OP(C) No. 2934 of 2015
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
FRIDAY, THE 24TH DAY OF MAY 2024 / 3RD JYAISHTA, 1946
OP(C) NO. 2934 OF 2015
AGAINST THE ORDER DATED 10.07.2015 IN I.A. NO.418/2010 AND
I.A. NO.419/2010 IN OS NO.190 OF 1995 OF ASSISTANT SESSIONS
COURT/SUB COURT / COMMERCIAL COURT, MAVELIKKARA
PETITIONERS/RESPONDENTS/DEFENDANTS:
1 YAKKOB (DIED)
AGED 55 YEARS
S/O. VAVAKUNJU,RESIDING AT PUTHEN PUTHUVEL
CHIRAKKADAVAM MURI,KAYAMKULAM VILLAGE FROM
KADASSERITHARAYIL, KEERIKKADU SOUTH MURI,
KEERIKKADU VILLAGE
2 NAZEEMA
AGED 50 YEARS
W/O. YAKKOOB, RESIDING AT PUTHEN PUTHUVEL
CHIRAKKADAVAM MURI, KAYAMKULAM VILLAGE
3 NAZEEM
AGED 30 YEARS
S/O.YAKOOB, RESIDING AT PUTHEN PUTHUVEL
CHIRAKKADAVAM MURI, KAYAMKULAM
4 NAJEEMA
AGED 29 YEARS
D/O.YAKOOB,RESIDING AT PUTHEN PUTHUVEL
CHIRAKKADAVAM MURI, KAYAMKULAM
[ADDITIONAL P3 AND P4 A/W P2 WHO IS ALREADY IN
THE PARTY ARRAY ARE IMPLEADED AS THE LRS OF THE
DECEASED FIRST PETITIONER VIDE ORDER DATED
18.03.2019 IN IA 1/2019]
BY ADV
SRI.A.SHAFEEK (KAYAMKULAM)
4
OP(C) No. 2933 of 2015 &
OP(C) No. 2934 of 2015
RESPONDENTS/PETITIONERS:
1 SUMATHI (DIED)
W/O.NARAYANA PANICKER, VAIKATHU VADAKKATHIL, FROM
KANDATHIL VADAKKATHIL, KEERIKKADU SOUTH MURI,
KEERIKKADU VILLAGE - 690508
2 LEELA
D/O. SUMATHI, VAIKKATHU VADAKKATHIL, FROM
KANDATHIL VADAKKATHIL, KEERIKKADU SOUTH MURI,
KEERIKKADU VILLAGE - 690508
3 GEETHA
D/O. SUMATHI, VAIKKATHU VADAKKATHIL, FROM
KANDATHIL VADAKKATHIL, KEERIKKADU SOUTH MURI,
KEERIKKADU VILLAGE -690508
[R2 AND R3 ARE RECORDED AS LRS OF DECEASED R1
VIDE ORDER DATED 30/09/2023]
BY ADVS.
MATHEW kURIAKOSE
RENJIT GEORGE
K.SHAJ
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
24.05.2024, ALONG WITH OP(C).2933/2015, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
5
OP(C) No. 2933 of 2015 &
OP(C) No. 2934 of 2015
Dated this the 24th day of May, 2024
JUDGMENT
[OP(C) Nos.2933/2015 & 2934/2015]
Exts.P6 and P7 orders in O.P.(C) No.2933/2015 and
Ext.P4 order in O.P.(C) No.2934/2015 passed by the Sub
Court, Mavelikara (for short 'the trial court') under Section
28 of the Specific Relief Act, are under challenge in these
Original Petitions.
2. The original petitioners were the defendants and the
husband of the first respondent was the plaintiff in O.S.
No.190/1995 on the files of Sub Court, Mavelikara.
3. The suit was for specific performance. The suit was
decreed and the defendants were directed to execute the
sale deed in favour of the plaintiff on payment of the
balance consideration by the plaintiff within one month. The
decree was passed on 31.03.2003. The plaintiff as well as
the first defendant died. The additional petitioners 3 and 4
are the legal heirs of the first defendant and the respondents
OP(C) No. 2933 of 2015 &
2 and 3 are the legal heirs of the original plaintiff. After
lapse of almost 7 years, the legal heirs of the original
plaintiff/respondents herein filed I.A. No.418/2010 under
Section 28(3) of the Specific Relief Act seeking permission to
deposit the balance sale consideration. They have also filed
I.A. No.419/2010 under Section 5 of the Limitation Act to
condone the delay. After the respondents filed such
applications, the petitioners filed I.A. No.1150/2011 under
Section 28(1) of the Specific Relief Act to rescind the
contract. All these applications were heard by the trial
court together. I.A. Nos.418/2010 and 419/2010 filed by the
respondents were allowed and I.A. No.1150/2011 filed by the
petitioners was dismissed as per the impugned orders. It is
challenging those orders, the petitioners approached this
Court invoking Article 227 of the Constitution of India.
4. I have heard Sri. A. Shafeek, the learned counsel
appearing for the petitioners and Sri. Mathew Kuriakose, the
learned counsel appearing for the respondents.
OP(C) No. 2933 of 2015 &
5. The suit was decreed on 31.03.2003 allowing the
plaintiff to deposit the balance sale consideration of
Rs.29,000/- (Rupees twenty nine thousand only) and
directing the defendants to execute the sale deed within one
month from the date of deposit of balance sale
consideration. The case of respondents herein before the
trial court was that, the original plaintiff was undergoing
treatment even during the pendency of the case and he died
on 06.08.2003. The respondents were not aware of the
decree. So, they could not take any further steps seeking
extension of time or to pay the balance consideration and to
get the sale deed executed. It is further alleged that they
came to know of the decree when the first respondent
accidentally met the advocate, who conducted the case. It
is not in dispute that the original plaintiff is no more. It is
also not in dispute that the respondents are the legal heirs
of the original plaintiff. There is nothing to disbelieve the
version of the respondents that they were not aware of the
OP(C) No. 2933 of 2015 &
proceedings. That apart, till an application has been filed by
the respondents under Section 28(3) of the Specific Relief
Act, the petitioners did not take any steps to get the
contract rescinded invoking Section 28(1) of the Specific
Relief Act. Had they taken such a step earlier, definitely the
respondents might have noticed about the decree. This is a
crucial factor to be taken note of while considering the
application for extension of time filed by the respondents.
Considering the entire facts and circumstances, of this case,
I am of the view that the trial court was absolutely justified
in granting the extension of time sought for. However, the
decree is of the year 2003. Now we are in 2024. The market
value of the property definitely may have been increased
considerably. Therefore, the respondents should be directed
to pay interest on the balance consideration of Rs.29,000/-
at the rate of 12% per annum. The respondents shall
deposit the balance consideration of Rs.29,000/- together
with interest thereon at the rate of 12% per annum with
OP(C) No. 2933 of 2015 &
effect from 31.03.2003 within a period of two months from
today. It is submitted by the learned counsel for the
respondents that his instruction is that the balance
consideration has already been deposited. Hence, it is made
clear that if such deposit is made, the respondents need to
deposit the interest portion awarded only. On the deposit of
the entire amount along with the interest as afore said, the
petitioners shall execute the sale deed in favour of the
respondents. It is made clear that if the respondents fail to
make the deposit as afore mentioned, the contract would be
treated as rescinded.
These Original Petitions are disposed of, as above.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
BR
OP(C) No. 2933 of 2015 &
APPENDIX OF OP(C) 2933/2015
PETITIONER'S EXHIBITS
EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED
31-3-2003 OF THE SUB COURT, MAVELIKARA
IN OS NO. 190/95.
EXHIBIT P2 TRUE COPY OF THE I.A.NO. 418/2010 IN OS
NO. 190/95 OF THE SUB COURT, MAVELIKARA.
EXHIBIT P3 TRUE COPY OF THE I.A.NO. 419/2010 IN OS
NO. 190/95 OF THE SUB COURT, MAVELIKARA.
EXHIBIT P4 TRUE COPY OF THE IA. NO. 1150/2011 FILED
BY THE PETITIONERS IN OS. NO. 190/95 OF
THE SUB COURT, MAVELIKARA.
EXHIBIT P5 TRUE COPY OF THE OBJECTION FILED BY THE
RESPONDENTS TO EXT. P4.
EXHIBIT P6 TRUE COPY OF THE ORDER DATED 10-7-2015
IN I.A NO. 418/2010 AND IA NO.419/2010
IN OS.NO. 190/95 OF THE SUB COURT,
MAVELIKARA.
EXHIBIT P7 TRUE COPY OF THE ORDER DATED 10-7-2015
IN I.A.NO. 1150/2011 IN OS NO. 190/95 OF
THE SUB COURT, MAVELIKARA.
RESPONDENT'S EXHIBITS: NIL
OP(C) No. 2933 of 2015 &
APPENDIX OF OP(C) 2934/2015
PETITIONER'S EXHIBITS
EXT.P1 TRUE COPY OF THE JUDGMENT DATED
31/3/2003 OF THE SUB COURT, MAVELIKARA
EXT.P2 TRUE COPY OF THE IA NO 418/2010 IN OS NO
100/95 OF THE SUB COURT, MAVELIKARA
EXT.P3 TRUE COPY OF THE IA NO 419/2010 IN OS NO
190/95 OF THE SUB COURT, MAVELIKARA
EXT.P4 TRUE COPY OF THE ORDER DATED 10/7/2015
IN IA NO 418/2010 AND IA NO 419/2010 IN
OS NO 190/95 OF THE SUB COURT,MAVELIKARA
RESPONDENT'S EXHIBITS: NIL
