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.