High Court of KeralaFAO/104/2015dismissed

Prakashan v. Sudevan

2015-12-04Honourable Smt. Justice P.V.Asha,Honourable Mr.Justice Antony Dominic4 pages

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE SMT. JUSTICE P.V.ASHA FRIDAY, THE 4TH DAY OF DECEMBER 2015/13TH AGRAHAYANA, 1937 FAO.No. 104 of 2015 () ----------------------- AGAINST THE ORDER/JUDGMENT IN IA.NOS.3754/14 & 3755/14 IN OS 539/1999 of PRL.SUB COURT,THRISSUR DATED 23-03-2015 APPELLANT(S)/PETITIONERS 1 TO 10 & 12 TO 15:

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1. PRAKASHAN, AGED 58 YEARS S/O.KARAYIL DEVAKY, RESIDING AT KARAYIL HOUSE PERINGOTTUKARA DESOM, KIZHAKKUMMURI VILLAGE THRISSUR TALUK, THRISSUR DISTRICT

2. VASANTHA, AGED 52 YEARS W/O.KRISHNAN, RESIDING AT VELLANCHERY HOUSE EDATHIRUTHY DESOM, EDATHIRUTHY VILLAGE KODUNGALLUR TALUK, THRISSUR DISTRICT

3. PRATHAPAN, AGED 54 YEARS S/O.KARAYIL DEVAKY, KAZHIMBRAM DESOM, VALAPPAD VILLAGE CHAVAKKAD TALUK, THRISSUR DISTRICT

4. BABU, AGED 50 YEARS S/O.KARAYIL DEVAKY, KAZHIMBRAM DESOM, VALAPPAD VILLAGE CHAVAKKAD TALUK, THRISSUR DISTRICT

5. THARA, AGED 48 YEARS W/O.SOMAN, KAKKANATT HOUSE, ALAPPATT VILLAGE THRISSUR TALUK THRISSUR DISTRICT

6. SHAJI, AGED 44 YEARS S/O.KARAYIL DEVAKY, KAZHIMBRAM DESOM, VALAPPAD VILLAGE CHAVAKKAD TALUK, THRISSUR DISTRICT

7. SHEELA, AGED 46 YEARS W/O.SASHIDHARAN, ERANEZHATH HOUSE, CHERKARA POST THALIKULAM VILLAGE, CHAVAKKAD TALUK, THRISSUR DISTRICT

8. SHEEBA, AGED 42 YEARS W/O.RANADEV, RESIDING AT KAREPARAMBIL HOUSE ALAPPAT PORATHUR, ALAPPAT VILLAGE, THRISSUR TALUK THRISSUR DISTRICT

9. MANI, AGED 55 YEARS W/O.PEETHAMBRAN, KARAYIL HOUSE, CHENTRAPPINNI DESOM CHENTRAPPINNI VILLAGE, KODUNGALLUR TALUK THRISSUR DISTRICT

FAO.104/15

10. BEJOY, AGED 37 YEARS S/O.PEETHAMBRAN, KARAYIL HOUSE, CHENTRAPPINNI DESOM CHENTRAPPINNI VILLAGE, KODUNGALLUR TALUK THRISSUR DISTRICT

11. GIREESH, AGED 31 YEARS S/O.PEETHAMBRAN, KARAYIL HOUSE, CHENTRAPPINNI DESOM CHENTRAPPINNI VILLAGE, KODUNGALLUR TALUK THRISSUR DISTRICT

12. SUNITHA, AGED 50 YEARS W/O.LATE LAL, KARAYIL HOUSE, C/O. SASI ERANEZHATH HOUSE, CHERKARA POST, THALIKULAM VILLAGE CHAVAKKAD TALUK, THRISSUR DISTRICT

13. SREEDEVI, AGED 28 YEARS W/O.LATE LAL, KARAYIL HOUSE, C/O. SASI ERANEZHATH HOUSE, CHERKARA POST, THALIKULAM VILLAGE CHAVAKKAD TALUK, THRISSUR DISTRICT

14. SUSHITHA AGED 26 YEARS W/O.LATE LAL, KARAYIL HOUSE, C/O. SASI ERANEZHATH HOUSE, CHERKARA POST, THALIKULAM VILLAGE CHAVAKKAD TALUK, THRISSUR DISTRICT BY ADVS.SRI.T.K.AJITH KUMAR SRI.K.T.SIDHIQ RESPONDENT(S)/RESPONDENT & 11TH PETITIONER:

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1. SUDEVAN, AGED 58 YEARS S/O.KESAVAN, RESIDING AT NEDIYIRUPPIL HOUSE KAZHIMBRAM DESOM, VALAPPAD VILLAGE, CHAVAKKAD TALUK THRISSUR, PIN 680568

2. HAREESH, AGED 31 YEARS W/O.PEETHAMBARAN, KARAYIL HOUSE, CHENTRAPPINNI DESOM CHENTRAPPINNI VILLAGE, KODUNGALLUR TALUK THRISSUR DISTRICT, PIN 680687 R1 BY ADV. SRI.N.K.UNNIKRISHNAN R1 BY ADV. SRI.S.RAJEEV R1 BY ADV. SRI.K.K.DHEERENDRAKRISHNAN R1 BY ADV. SRI.V.VINAY R1 BY ADV. SRI.N.U.HARIKRISHNA R2 BY ADV. SMT.M.A.JINSA MOL THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 04-12-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

ANTONY DOMINIC & P.V.ASHA, JJ.

----------------------------------- F.A.O.No.104 of 2015 ----------------------------------- Dated this the 4th day of December, 2015

JUDGMENT

Antony Dominic, J.

1. This appeal is filed by petitioners 1 to 10 and 12 to 15 in I.A.Nos.3754/14 and 3755/14 in O.S.539/99 on the file of the Principal Sub Court, Thrissur. O.S.539/99 was filed by the first respondent herein praying for a decree for specific performance of an agreement executed between the original sole defendant and the plaintiff. The suit was decreed ex parte on 10.12.2012. It was thereafter that the IAs in question were filed by the petitioners therein, seeking to set aside the ex parte decree and to condone the delay in applying for the same. By the impugned order, the court below dismissed the applications. It is this order which is under challenge before us.

2.In so far as I.A.3755/14 whereby condonation of delay was sought for is concerned, the order itself shows that on the date when the matter was heard, the parties were absent. Though in the memorandum of appeal, this statement in the order is described to

FAO.104/15 be incorrect, there is absolutely no material for us to conclude otherwise. We also take note of the fact that neither the order nor the memorandum of appeal contain any finding or averment indicating the extent of delay that was sought to be condoned. In other words, the order itself shows that the 17th defendant, who is presumed to have filed affidavit in support of the petitioner, had knowledge of the decree long before the application was made and she received information about the decree from the 4th defendant in the suit. It is despite that knowledge, she left the station to join her daughters and made application on 30.8.2013. All these show that it was the laches and negligence of the parties which led to the delay and the ex parte decree. We are not satisfied that the court below has committed any illegality in rejecting I.A.3755/14 and consequently, I.A.3754/14.

Appeal fails and is accordingly dismissed.

Sd/- ANTONY DOMINIC, Judge.

Sd/- P.V.ASHA, Judge.

kkb.

/True copy/ PS to Judge