Kerala High Court
George Augustine vs Jhonson Augustine on 26 September, 2024
2024:KER:72382
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
THURSDAY, THE 26TH DAY OF SEPTEMBER 2024 / 4TH ASWINA, 1946
OP(C) NO. 1465 OF 2024
AGAINST THE ORDER/JUDGMENT DATED 24.06.2024 IN CMA NO.14 OF
2024 OF ADDITIONAL DISTRICT & SESSIONS COURT,MUVATTUPUZHA ARISING
OUT OF THE ORDER/JUDGMENT DATED 03.07.2020 IN OS NO.511 OF 2015 OF
MUNSIFF COURT,MUVATTUPUZHA
PETITIONER:
GEORGE AUGUSTINE
AGED 55 YEARS
OCC:- AGRICULTURE, S/O AUGUSTINE, VADAKEKKUDY- HOUSE,
MANJALLOR-KARA, MANJALLOOR-VILLAGE, VAZHAKULAM-POST,
MUVATTUPUZHA-THALUK, ERNAKULAM- DISTRICT, PIN 686670
NOW RESIDING AT:- HOUSE NO.XX/85, MARADY-KARA, MARADY-
VILLAGE, SOUTHMARADY-POST, MUVATTUPUZHA-THALUK,
ERNAKULAM- DISTRICT, PIN - 686673
BY ADVS.
BIJU ANTONY ALOOR
HASEEB HASSAN.M
KRISHNASANKAR D.
K.I.TOGI
REBIN VINCENT GRALAN
ATHUL M. JOSHEY
RESPONDENTS:
1 JHONSON AUGUSTINE
AGED 63 YEARS
S/O AUGUSTINE, VADAKEKKUDY- HOUSE, MANJALLOR-KARA,
MANJALLOOR-VILLAGE, VAZHAKULAM-POST, MUVATTUPUZHA-
OP(C) No. 1465 of 2024 :2:
2024:KER:72382
THALUK, ERNAKULAM- DISTRICT,, PIN - 686670
2 SHILLY GEORGE
AGED 50 YEARS
OCC:- TEACHER, W/O GEORGE AUGUSTINE, VADAKEKKUDY-
HOUSE, MANJALLOR-KARA, MANJALLOOR-VILLAGE,
VAZHAKULAM-POST, MUVATTUPUZHA-THALUK, NOW RESIDING
AT: HOUSE NO.XX/85, MARADY-KARA, MARADY-VILLAGE,
SOUTH MARADY-POST, MUVATTUPUZHA-THALUK, ERNAKULAM-
DISTRICT, PIN - 686673
BY ADVS.
MANU VYASAN PETER
P.B.KRISHNAN (SR.)(K/1193/1994)
P.B.SUBRAMANYAN(K/1145/2009)
SABU GEORGE(K/000711/1998)
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON
26.09.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(C) No. 1465 of 2024 :3:
2024:KER:72382
VIJU ABRAHAM , J.
===========================
OP(C) No. 1465 of 2024
============================
Dated this the 26th day of September, 2024
JUDGMENT
The Petitioner has approached this Court challenging Order
dated 24.06.2024 on the file of the Civil Judge, Senior Division,
Muvattupuzha in I.A. No. 01 of 2024 in C.M.A No. 14 of 2024.
2. Brief facts necessary for the disposal of this Original
Petition are as follows:
Petitioner was the 1st defendant in O.S. No. 511 of 2015 in which the
2nd defendant is his wife. The petitioner was set ex parte and the suit
was decreed as per Ext.P2 judgment on 03.07.2020. Appeal was
preferred by the 2nd respondent, wife of the defendant and the
appeal was dismissed as per Ext.P3, and the second appeal filed
before this Court was also dismissed as per Ext P4. In Exts.P3 and P4
also, the petitioner though was a party did not appear. It is
contended that the petitioner came to know about these orders only
when notice in the E.P. No. 39 of 2020 was received, and he filed E.A.
Nos.05 of 2023 and 06 of 2023. The 2 nd respondent who is his wife
also did not inform him about the suit and the consequent appeals
filed. Thereupon, the petitioner filed Ext.P6(a) petition to set aside
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the ex-parte order along with Ext.P6(b) to condone the delay in filing
the same on 18.05.2024. The said applications were dismissed as
per Ext.P8 order on 17.01.2024. Aggrieved by the same, an appeal
was preferred as C.M.A. No. 14 of 2024 along with a petition to
condone the delay. The said application for condonation of delay was
dismissed as per the order dated 24.06.2024. It is aggrieved by the
same that the present original petition is filed.
3. The learned Counsel for the petitioner would submit that
his suffering from various ailments in between 2014 to 2022, covid
pandemic and the assurance of the opposite party that the matter
will be settled in a month's time are the reasons why a petition
seeking to set aside the ex-parte order and CMA could not be filed
within time. In support of the contention, certain medical certificates
including bills were produced by the petitioner as Ext.P5 series
before this Court.
4. The learned Senior Counsel appearing for the 1st
respondent would submit that there is absolutely no bonafide in the
present petition and is filed only to delay the execution proceedings.
No sufficient cause has been shown as to the delay in filing a
petition to set aside the ex-parte order and also the appeal.
5. I have heard the rival contentions of both sides.
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6. The suit is of the year 2015 which was decreed ex-parte
against the petitioner on 03.07.2020. The suit is filed by the 1 st
respondent who is the brother of the petitioner herein against the
petitioner as well as his wife who is the 2 nd respondent herein. In the
said suit, only the wife who is the 2nd respondent herein contested.
Against the judgment and decree the 2 nd respondent alone filed
appeal as A.S. No. 50 of 2020 before the Subordinate Judge's Court,
Muvattupuzha, in which the petitioner was arrayed as 2 nd respondent
but did not appear and contest the matter. The said appeal was
dismissed as per order dated 31.08.2022. Second appeal was
preferred as R.S.A. No.724 of 2022 by the 2 nd respondent herein in
which also the petitioner was arrayed as 2nd respondent, but he did
not contest the matter. The said appeal was also dismissed as per
order dated 27.06.2023. It is pertinent to note that in the second
appeal the appellant who is the wife of the petitioner herein sought
six months time to vacate the premises as decreed, but this Court
was not inclined to grant any time for vacating the house taking into
consideration that the suit is of the the year 2015. It is thereafter
that the petitioner filed a petition for setting aside the ex-parte
decree passed on 03.07.2020 with a delay of 1150 days in filing the
same, which was dismissed. The appeal preferred against the said
order as C.M.A No. 14 of 2024 was also with a delay of 97 days
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which was also dismissed for the reason that no sufficient cause has
been shown for the delay in filing the appeal.
7. Admittedly, the petitioner and his wife were the
defendants in the suit and the petitioner remained ex-parte but the
suit was contested by the wife. In the appeal and second appeal
preferred by the wife who is the 2nd respondent herein, the petitioner
was arrayed as a party and he had notice of the proceedings but
chose not to appear and contest the matter. Even going by the case
of the petitioner, he was under treatment till 2022. No material has
been produced by the petitioner to substantiate that he has been
advised to undergo complete bedrest from 17.01.2024, the date on
which the petition to condone the delay in filing the petition to set
aside the ex-parte order was dismissed by the Munsiff Court,
Muvattupuzha. The covid pandemic stated as a reason for the delay
in filing the appeal can also not be accepted since the dismissal
order by the learned Munsiff was on 17.01.2024. Admittedly, the
petitioner was party to the appeal and second appeal preferred by
his wife and is aware of the judgment and decree passed against
him as early as in 2020. No documents or medical certificates have
been produced to substantiate that the petitioner was unable to file
the appeal challenging the order of the learned Munsiff dated
17.01.2024. The petition to set aside the ex-parte order was also
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filed with a delay of more than 1150 days and the same was also
dismissed on the ground of delay itself.
It is to be noted that the petitioner along with his wife are the
defendants in the suit. The petitioner had notice in the appeal and
the 2nd appeal preferred by his wife and therefore the contention of
the petitioner that he came to know about the ex-parte order only
when the copy of the execution petition was received by him cannot
be accepted. In the above facts and circumstances of the present
case, I am of the view that the finding of the Trial Court and Appelate
Court that no suficienct cause has been shown for condoning the
delay is only to be accepted. Therefore, I find no merit in this original
petition and the same is accordingly dismissed.
Sd/-
VIJU ABRAHAM
JUDGE
sbk/-
2024:KER:72382
APPENDIX OF OP(C) 1465/2024
PETITIONER EXHIBITS
Exhibit P1 COPY OF THE ORDER DATED 24/06/2024 IN IA
1/2024 IN CMA NO. 14/2024 BY LD. CIVIL
JUDGE SENIOR DIVISION MUVATTUPUZHA
Exhibit P2 TRUE COPY OF THE ORDER IN O. S. NO.
511/2015 IN 03/07/2020
Exhibit P3 TRUE COPY OF THE JUDGMENT AND DECREE IN A.
S. NO. 50/2020 DATED 31/08/2022
Exhibit P4 TRUE COPY OF THE ORDER IN RSA U/VIDE NO.
724/2022 OF HON'BLE HIGH COURT DATED
27/06/2023
Exhibit P5 A TRUE COPY OF THE MEDICAL CERTIFICATES
DATED 12/04/2023
Exhibit P6 TRUE COPY OF THE PETITION TO CONDONE THE
DELAY U/VIDE I.A. NO. 144/2023 & I.A.
NO.1/2023 IN O.S. NO. 511/2015 BEFORE THE
HON'BLE CIVIL JUDGE (JUNIOR DIVISION) AT
MUVATTUPUZHA DATED 23/09/2023
Exhibit P7 TRUE COPY OF THE ORDER IN E.A. NO. 05/2023
& E.A. NO.06/2023 IN E. P. NO. 39/2020 OF
HON'BLE CIVIL JUDGE (JUNIOR DIVISION) AT
MUVATTUPUZHA DATED 17/06/2024
Exhibit P8 TRUE COPY OF THE COMMON ORDER IN I.A. NO.
144/2023 & I.A. NO.1/2023 IN O.S. NO.
511/2015 DATED 17/01/2024
Exhibit P9 TRUE COPY OF THE APPLICATIONS C. M. A. NO.
14/2024 ALONG WITH I. A. 01/2024 BEFORE
THE LD. CIVIL JUDGE (SENIOR DIVISION)
MUVATTUPUZHA DATED 18/05/2024
