High Court Kerala High Court

Chandraguptan Pillai vs Bindu on 22 June, 2007

Kerala High Court
Chandraguptan Pillai vs Bindu on 22 June, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 33544 of 2004(R)


1. CHANDRAGUPTAN PILLAI,
                      ...  Petitioner
2. SREEJA, D/O. CHANDRAGUPTAN PILLAI,

                        Vs



1. BINDU,
                       ...       Respondent

                For Petitioner  :SRI.PHILIP T.VARGHESE

                For Respondent  :SRI.RAM MOHAN.G.

The Hon'ble MR. Justice PIUS C.KURIAKOSE

 Dated :22/06/2007

 O R D E R


                            PIUS C. KURIAKOSE,J.

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                           W.P.(C) No.33544 of 2004

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                             Dated: 22nd June, 2007


                                    JUDGMENT

Ext.P5 order by which the court below has dismissed an

application for restoration of an application to set aside the ex parte

decree is under challenge. The Writ Petition is instituted some two

years after Ext.P5 was passed.

2. I have gone through the Writ Petition and I have heard the

submissions of Mr.Philip T.Varghese, learned counsel for the

petitioners and Mr.Ram Mohan, learned counsel for the respondent.

The suit was one for declaration of plaintiff’s right over the suit

property and for permission to put up a barbed wire fencing on its

boundary the property covered by Ext.A1 which is a settlement deed

executed in favour of the respondent by her mother. The executant

of Ext.A1 had obtained title to the property from the 1st petitioner

who was the previous owner. It is not specifically denied in the

written statement which was filed by the 1st petitioner that the extent

shown in the document which was executed by the 1st petitioner in

favour of the mother of the respondent was two acres. On the

contrary what is contended is that though an extent of two acres is

shown in Ext.A1, the extent actually conveyed by the mother to the

W.P.C.No. – 2 –

daughter the respondent was only 1.75 acres. In other words, the

contentions raised were not easily capable of being substantiated by

adducing legal evidence. I have gone through Ext.P5. The learned

Munsiff under Ext.P5 has found that the oral evidence adduced by the

1st petitioner did not inspire confidence in his mind. The explanation

offered by the 1st petitioner for his absence when the case was taken

up for trial was that he had left the court to purchase medicine

without informing the counsel or any one else. The learned Munsiff

significantly the same officer who presided over the court at the time

of dismissal of the suit was not inspired by the oral evidence given by

the 1st petitioner. I do not find any warrant for interfering with Ext.P5

especially since I feel that the contentions raised by the 1st petitioner

through the written statement was almost impossible of being

substantiated by adducing legal evidence. At any rate, it cannot be

said that the impugned order is vitiated to the extent of entailing

liability for interference under Article 227. The challenge against

Ext.P5 will fail and the Writ Petition is dismissed. No costs.

srd                                                         PIUS C.KURIAKOSE, JUDGE