High Court Kerala High Court

K.M.Vikraman Nambiar vs M.Sheeba on 26 May, 2009

Kerala High Court
K.M.Vikraman Nambiar vs M.Sheeba on 26 May, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

FAO.No. 108 of 2004()


1. K.M.VIKRAMAN NAMBIAR, KEERTHI NIVAS,
                      ...  Petitioner

                        Vs



1. M.SHEEBA S/O.RAMACHANDRAN, AGED 31
                       ...       Respondent

                For Petitioner  :SRI.MOHANAN V.T.K.

                For Respondent  :SRI.R.PARTHASARATHY

The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice K.M.JOSEPH

 Dated :26/05/2009

 O R D E R
                   P.R. RAMAN & P. BHAVADASAN, JJ.
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                             F.A.O. No. 108 of 2004
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                   Dated this the 26th day of May, 2009.

                                      JUDGMENT

Raman, J,

This is an appeal against an order dismissing the

application filed under Order IX Rule 13 of the Code of Civil

Procedure by the first defendant in the suit.

2. Suit is one for specific performance of an

agreement. Appellant was the owner of the property and the first

defendant in the suit. He filed a written statement contending that

he sold the property in favour of the second defendant. As such,

the real person, who is aggrieved in case ultimately a decree is

eventually passed in favour of the plaintiff is the second defendant,

since the first defendant had no surviving interest over the

property as on the date on which he filed the written statement.

The second defendant contested the matter, take up all possible

pleas and finally a decree was passed in favour of the plaintiff

granting specific performance. The first defendant thereafter

contended that he was laid up from September, 2002 to September,

2003 and therefore he was not in a position to attend the court

F.A.O.108/2004. 2

when the suit came up for trial. The case was listed on 10.10.2002, and

on that day the plaintiff filed his affidavit for chief examination and the

case was adjourned to 17.10.2002 at the request of the defendant.

P.W.1 was cross-examined on 17.10.2002. Exts.A1 to A4 documents

were marked. The matter was posted for further evidence on

19.10.2002. On that day P.W.2 was examined on the plaintiff’s side

and plaintiff’s evidence was closed. Second defendant gave evidence

as D.W.2. Exts .B1 to B4 were marked and the evidence was closed.

Arguments were heard on 22.10.2002 and adjourned for hearing to

24.10.2002 and after hearing the parties judgment was pronounced on

30.10.2002. Both defendants 1 and 2 had raised identical contentions

in the written statement. Therefore, the plea to re-open the case at the

instance of the first defendant on the ground that he was laid up for

more than an year disabling him to attend the trial did not instill

confidence in the mind of the court. It also found that the contention is

bereft of bonafides. The judgment and decree were passed on merits.

If at all the person interested to fight out the case is the second

defendant, nothing prevented him from filing an appeal if he is so

F.A.O.108/2004. 3

aggrieved. As far the first defendant is concerned, as already stated, he

had no surviving interest in the property. Therefore, this is nothing but

an attempt to drag the proceedings at the instance of the second

defendant by the first defendant.

3. In such circumstances, we find that the court below was

perfectly right in dismissing the application filed under Order IX Rule

13 CPC. The delay in filing the petition itself was not properly

explained. No materials were placed in support of the reasons put forth

in the delay petition. Except the ipse dixit, the petitioner did not give

any evidence.

In the above facts and circumstances, we hardly find any

reason to interfere with the order passed by the court below. The

appeal is dismissed.

P.R. Raman,
Judge

P. Bhavadasan,
Judge

sb.