High Court Kerala High Court

Poolakkal Subramanian vs K.Chandrika on 17 November, 2008

Kerala High Court
Poolakkal Subramanian vs K.Chandrika on 17 November, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRP.No. 489 of 2008(Y)


1. POOLAKKAL SUBRAMANIAN, S/O LATE THAMI,
                      ...  Petitioner
2. POOLAKKAL SAROJINI, D/O LATE THAMI
3. POOLAKKAL VASANTHA, D/O LATE THAMI,
4. POOLAKKAL SARASWATHI, D/O LATE THAMI,
5. POOLAKKAL SUMA, D/O LATE THAMI,
6. POOLAKKAL SUDHAKARAN, S/O LATE THAMI,
7. KALI, W/O LATE POOLAKKAL THAMI,

                        Vs



1. K.CHANDRIKA, W/O MANCHERI, VELUTHEDATH,
                       ...       Respondent

                For Petitioner  :SRI.T.KRISHNANNUNNI(SR.ADVOCATE)

                For Respondent  :SRI.T.SETHUMADHAVAN

The Hon'ble MR. Justice K.P.BALACHANDRAN

 Dated :17/11/2008

 O R D E R
               K.P. Balachandran, J.
            --------------------------
               C.R.P.No.489 of 2008
            --------------------------

                       ORDER

This revision petition is filed by the

petitioners, who are the defendants in O.S.No.

265/99 on the file of the Munsiff’s Court, Tirur.

The suit is stated to be one for eviction of the

petitioners from their residential house. The suit

was decreed ex parte on 21.8.2006. Petitioners

filed I.A.No.1765/06 before the trial court to get

the ex parte decree set aside and the said

application was dismissed by the trial court vide

order dated 6.3.2007. Against the said order,

petitioners filed C.M.A.No.14/07 before the Sub

Court, Tirur and that was dismissed vide judgment

dated 31.5.2008. It is assailing the order of the

trial court on I.A.No.1765/06 in O.S.No.265/99 and

the judgment of the first appellate court in C.M.A.

No.14/07 that this revision is filed.

2. Counsel for the respondent also entered

appearance and submissions of both the counsel were

CRP 489/08 2

heard.

3. Counsel for the petitioners submitted that

against the rejection of kukikidappu application

filed by them, A.A.No.224/00 was filed before the

Land Reforms Appellate Authority, Thrissur and that

was dismissed on 13.3.2006 and against that order,

a revision was filed before this Court on 26.5.2006

with c.f.No.3583, but that the said file is missing

in this Court and that therefore, petitioners could

not get any relief from that revision. In view of

the said submission, the office was directed to

verify and report whether any revision had been

filed as is submitted. Office has reported that

revision in fact was filed on 26.5.2006 against the

order in A.A.No.224/00 with filing No.3583, but the

same was returned as defective on 11.10.2006, vide

Defect No.10550/06 of defect register and that on

verification of the re-presentation register and

defect register, the same is not seen re-presented

thereafter. Hence, the grievance that tenancy right

CRP 489/08 3

claimed independently by filing application before

the Land Tribunal could not be taken up to this

Court, when it was concurrently dismissed by the

Land Tribunal as also by the appellate authority is

not a grievance that can be countenanced and the

petitioners have to blame themselves.

4. As regards the claim of the petitioners to

have the ex parte decree set aside also, I do not

see much merit. The suit is one of the year 1999.

The court below has observed that it was on account

of non co-operation of the petitioners that the

dismissal of the suit could not be had on merits.

When the suit was listed in 2002, they remained ex

parte. Then also, petition to set aside the ex

parte decree was filed and that was allowed.

Again, when the suit was listed in the year 2006,

the petitioners remained absent and ex parte and

the suit was again decreed ex parte. The court

below has further observed that the petitioners

were claiming kudikidappu right over the property

CRP 489/08 4

involved in the suit and their prayer for issuance

of purchase certificate was dismissed by the Land

Tribunal and the said dismissal was upheld by the

appellate authority as well. It is the said

decision of the appellate authority that was

attempted to be assailed before this Court by

filing a revision. But the revision was defective

and despite return of the same for curing the

defects, they have not re-presented the revision.

When the claim of the petitioners, who were the

defendants in the suit, which was decreed ex parte,

was that they are entitled to kudikidappu right and

are entitled to purchase the same and it is found

that the said right independently agitated before

the appropriate forum and the appellate authority

were dismissed and it is not prosecuted further,

there is no merit in the contentions of the

petitioners and the very same contentions cannot

also be agitated afresh in the suit. It is probably

for that reason that they have abstained from

CRP 489/08 5

contest and are filing petitions to set aside the

ex parte decree when once the decree is passed ex

parte. The evidence adduced on the side of the

petitioners have been discussed threadbare by the

trial court in the order dismissing the petition to

set aside the ex parte decree. The courts below

have concurrently considered the matter and found

that the petition to set aside the ex parte decree

is ill conceived and is devoid of any merit. There

is no reason for this Court to take a different

view on the facts and circumstances emerging from

the records available.

In the result, I dismiss this CRP.

17th November, 2008 (K.P.Balachandran, Judge)
tkv