Kerala High Court
P.Askar Ali Khan vs Pathu @ Pathumma on 7 August, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
2025:KER:59429
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
THURSDAY, THE 7TH DAY OF AUGUST 2025 / 16TH SRAVANA, 1947
RFA NO. 98 OF 2021
AGAINST THE ORDER DATED 08.06.205 IN IA Nos.906/12 & 907/12
IN OS NO.38 OF 2009 OF SUB COURT, OTTAPPALAM
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APPELLANT IN RFA-PLAINTIFF IN SUIT:
P.ASKAR ALI KHAN
S/O.PALAKKAL LIYAKHATH ALI KHAN, AGED 40, PALAKKAL,
KARIMBA II VILLAGE, KALLADIKODE DESOM,
MANNARKKAD TALUK, PALAKKAD DISTRICT-678596.
BY ADVS.
SHRI.P.B.KRISHNAN (SR.)
SRI.P.B.SUBRAMANYAN
SRI.SABU GEORGE
SRI.MANU VYASAN PETER
SMT.MEERA P.
RESPONDENTS IN RFA-DEFENDANTS IN SUIT:
1 PATHU @ PATHUMMA
W/O.POLLAKUNNAN MUHAMMED HAJI & D/O.KONGATH KURIKKAL
HYDROSE, AGED 67, THIRUVIZHAMKUNNU AMSOM AND DESOM,
MANNARKKAD TALUK, PALAKKAD DISTRICT-678582.
2 FIROZ KHAN,
S/O.POLLAKUNNAN MUHAMMED HAJI, AGED 48 YEARS,
THIRUVIZHAMKUNNU AMSOM AND DESOM, MANNARKKAD TALUK,
PALAKKAD DISTRICT-678582.
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RFA NO. 98 OF 2021 -2-
3 SHANAVAS KHAN,
S/O.POLLAKUNNAN MUHAMMED HAJI, AGED 44 YEARS,
THIRUVIZHAMKUNNU AMSOM AND DESOM, MANNARKKAD TALUK,
PALAKKAD DISTRICT-678582.
BY ADV SHRI.M.C.JOHN
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
07.08.2025, ALONG WITH FAO.218/2015, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
2025:KER:59429
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
THURSDAY, THE 7TH DAY OF AUGUST 2025 / 16TH SRAVANA, 1947
FAO NO. 218 OF 2015
AGAINST THE ORDER DATED 08.06.2015 IN IA NOs.906/12 & 907/12
IN OS NO.38 OF 2009 OF SUB COURT, OTTAPPALAM
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APPELLANT/PETITIONER/PLAINTIFF:
P.ASKAR ALI KHAN
S/O.LIYAKHATH ALI KHAN, AGED 34 YEARS, RESIDING AT
PALAKKAL, KARIMBA II VILLAGE, KALLADIKODE DESOM,
MANNARKKAD TALUK.
BY ADVS.
SHRI.P.B.KRISHNAN (SR.)
SRI.P.B.SUBRAMANYAN
SRI.SABU GEORGE
SMT.B.ANUSREE
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 PATHU @ PATHUMMA
W/O.POLLAKUNNAN MUHAMMED HAJI &
D/O.KONGATH KURIKKAL HYDROSE,
THIRUVIZHAMKUNNU AMSOM AND DESOM, MANNARKKAD TALUK,
PALAKKAD DISTRICT, PIN -678 582.
2 FIROS KHAN,
S/O.POLLAKUNNAN MUHAMMED HAJI, THIRUVIZHAMKUNNU AMSOM
AND DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT,
PIN -678 582.
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FAO NO. 218 OF 2015 -2-
3 SHANAVAS KHAN
S/O.POLLAKUNNAN MUHAMMED HAJI, THIRUVIZHAMKUNNU AMSOM
AND DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT,
PIN -678 582.
BY ADV SHRI.M.C.JOHN
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR HEARING ON
07.08.2025, ALONG WITH RFA.98/2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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SATHISH NINAN &
P. KRISHNA KUMAR, JJ.
= = = = = = = = = = = = = = = = = =
R.F.A. No.98 of 2021 & FAO No.218 of 2015
= = = = = = = = = = = = = = = = = =
Dated this the 7th day of August, 2025
J U D G M E N T
Sathish Ninan, J.
The suit for specific performance of an agreement for
sale was rejected for non-payment of balance court fee. The
applications seeking restoration of the suit on condoning
the delay, were dismissed by the court. The RFA is filed
against the decree and the FAO is filed against the order
refusing to restore the suit.
2. We have heard the learned counsel on either side.
3. The suit for specific performance of an agreement
for sale was filed in the year 2009. For the failure of the
plaintiff to pay the balance court fee, the plaint was
rejected on 09.04.2010. The plaintiff filed I.A. Nos.906/
2012 and 907/2012 seeking to have the suit restored back to
file on condonation of delay of 645 days. The trial court
dismissed the applications.
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4. According to the plaintiff, there was a proceeding
before the Taluk Land Board, Mannarkkad, in respect of the
property and during the pendency of the suit they understood
that the defendant's claim before the Land Board under
Section 7E of the Kerala Land Reforms Act, was rejected.
Challenging such rejection, a writ petition was pending
before this Court as W.P(C). No.8251 of 2009. In the light
thereof, the plaintiff filed an I.A. in the suit, seeking
stay of the suit. The application was dismissed by the
Court. The petitioner challenged the order before this Court
in W.P.(C) No.25059/2010. The writ petition was disposed of
on 11.01.2012 leaving open the rights of the plaintiff to
take steps to have the suit restored back to file. It is
thereafter that the applications for restoration and
condonation of delay were filed on 29.02.2012. Excluding
such period, the delay is only of 112 days.
5. The plaintiff had filed I.A. No.963/2010 under
Section 148 of the Code of Civil Procedure seeking
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enlargement of time for payment of balance court fee.
However, the said application was dismissed by the court,
followed by the rejection of the plaint.
6. Under the agreement for sale, an amount of ₹ 25
lakhs was paid towards advance sale consideration. It is
trite that every endeavour shall be made by the court to
have the lis decided on merits rather than a judgment on
default.
7. Bearing all the above in mind, we are of the opinion
that an opportunity can be granted to the plaintiff to get
the suit tried and disposed of on merits. The inconvenience
caused to the defendants can be compensated by way of costs.
Resultantly, the appeals are allowed. The judgment and
the order impugned are set aside. The suit OS 38/2009 of the
Sub Court, Ottapalam, will stand restored back to file.
However, this shall be subject to the condition that the
appellant-plaintiff pays an amount of ₹ 10,000/- as costs to
the counsel appearing for the respondents-defendants before
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this Court within a period of ten days from today, and the
balance court fee is paid on or before 10.09.2025. On
failure to pay the costs and the court fee as ordered, the
appeals will stand dismissed.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P. KRISHNA KUMAR
JUDGE
kns/-
//True Copy//
P.S. To Judge
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PETITIONER ANNEXURES
ANNEXURE A DATED 27.08.2008, TRUE COPY OF THE AGREEMENT
FOR SALE DATED 27.08.2008 ENTERED INTO
BETWEEN THE APPLICANT AND RESPONDENTS.
ANNEXURE B DATED 24.02.2009, TRUE COPY OF THE ORDER
PASSED BY THE TALUK LAND BOARD, MANNARKKAD IN
S.M.NO.1167/77.
ANNEXURE C DATED 22.06.2009, TRUE COPY OF THE JUDGMENT
IN W.P.(C)NO.8251 OF 2009-B OF THIS HON'BLE
COURT, DATED 22.06.2009.
ANNEXURE D DATED 26.03.2009, TRUE COPY OF THE ORDER IN
O.S.NO.38 OF 2009 ON THE FILE OF THE
SUBORDINATE JUDGE'S COURT, OTTAPALAM.
ANNEXURE E DATED 26.03.2009, TRUE COPY OF THE ORDER IN
I.A.NO.865 OF 2009 IN O.S.NO.38 OF 2009 OF
THE SUBORDINATE JUDGE'S COURT, OTTAPALAM.
ANNEXURE F DATED 12.06.2009, TRUE COPY OF THE JUDGMENT
IN W.P.(C)NO.11068 OF 2009 OF THIS HON'BLE
COURT.
ANNEXURE G DATED 09.04.2016, TRUE COPY OF THE ORDER IN
I.A.NO.963 OF 2010 IN O.S.NO.38 OF 2020 ON
THE FILE OF THE SUBORDINATE'S COURT,
OTTAPALM.
ANNEXURE H DATED 11.01.2012, TRUE COPY OF THE JUDGMENT
IN W.P(C)NO.35059 OF 2010 OF THIS HON'BLE
COURT, DATED 11.01.2012.
ANNEXURE I DATED 08.06.2012,TRUE COPY OF THE COMMON
ORDER IN I.A.NO.906 AND 907 OF 2012 IN
O.S.NO.38 OF 2009 ON THE FILE OF THE
SUBORDINATE JUDGE'S COURT, OTTAPALM.
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