Kuthirummal Pokkai vs Kuthirummal Kunhambu on 7 September, 2007

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

SA No. 305 of 1994(C)



1. KUTHIRUMMAL POKKAI
                      ...  Petitioner

                        Vs

1. KUTHIRUMMAL KUNHAMBU
                       ...       Respondent

                For Petitioner  :SRI.K.SHRIHARI RAO

                For Respondent  :SRI.P.N.KRISHNANKUTTY ACHAN(SR.)

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :07/09/2007

 O R D E R
              M.SASIDHARAN NAMBIAR,J.
            ===========================
              C.M.Appl.537/07,I.A.1574/07 &
           I.A.1575/07in S.A.No.305/1994
                         &
                 S.A.No.305/1994
            ===========================

     Dated this the 7th day of September,2007

                     O R D E R

These petitions are filed to condone the

delay to set aside the abatement and to implead

supplemental appellant as additional second

appellant, being the legal heir of original

appellant who died on 5.6.2004. The application is

filed after a delay of 1036 days. Case of the

petitioner is that O.P.16966/1997 was pending and

impleading application was filed only in that case

and by mistake no impleading application was filed

in the second appeal and it was not wilful; but

due to an oversight and therefore delay is to be

condoned and abatement is to be set aside and he is

to be impleaded. Petition is opposed by

respondents.

2. On hearing the learned counsel appearing for

the petitioner and respondents, it is seen that

2

the suit itself is only one for permanent

prohibitory injunction restraining respondents from

trespassing into the plaint schedule property and

no decree was granted in his favour by trial court

or first appellate court. It is also admitted that

claim for tenancy raised by appellant was disputed

and it is pending before this court in

C.R.P.193/2007. It is submitted that the original

order granted in favour of appellant was set aside

by Appellate Authority (Land Reforms) and remanded

to the Land Tribunal, which is challenged before

this court originally by filing a writ petition

and in view of the decision of the Apex Court it

was withdrawn and a Civil Revision Petition is

pending. As the suit is only for injunction, at

this stage I do not find it necessary to condone

delay or to set aside the abatement. The

petitions are dismissed as abated. Consequently

3

the appeal is dismissed. It is made clear that

dismissal of the appeal will not prevent appellant

from seeking a decree on the strength of title, if

any.

M.SASIDHARAN NAMBIAR
JUDGE
tpl/-

M.SASIDHARAN NAMBIAR, J.

———————

W.P.(C).NO. /06

———————

JUDGMENT

SEPTEMBER,2006