IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C) No. 20334 of 2004(U) 1. YASODA, W/O.LATE SUDEVAN, ... Petitioner 2. MUKESH, S/O.LATE SUDEVAN, 3. SURESH, DO. DO. 4. MAHESH, DO. DO. Vs 1. JOY, PAYIKANDATHU VEEDU, ... Respondent 2. THATHA, PATHIRAPARAMBIL HOUSE, 3. KUNCHI, PUTHANKULAMBU, 4. KALUKUTTY, PUTHANKULAMBU, For Petitioner :SRI.S.ANANTHAKRISHNAN For Respondent :SRI.P.VIJAYA BHANU The Hon'ble MR. Justice PIUS C.KURIAKOSE Dated :12/06/2007 O R D E R PIUS C. KURIAKOSE, J. ------------------------------- W.P.(C) No. 20334 OF 2004 ----------------------------------- Dated this the 12th day of June, 2007 JUDGMENT
It is submitted that the issue involved in this writ petition is
between the petitioner and the 2nd respondent plaintiff alone and that the
other respondents are only pro-forma parties. I accept the above
submission and dispense with issuance of notice to respondents 1 and
3. The 3rd respondent is already reported dead, but steps need not be
taken against the legal heirs of the 3rd respondent.
2. Ext.P1 order of the District Judge dismissing an application for
condonation of the delay caused in the matter of seeking impleadment
in the appeal is under challenge in this Writ Petition under Article 227.
The husband of the first petitioner and the father of the others, one
Sri.Sudevan was the first appellant before the District Court. The
second appellant was the assignee of Mr.Sudevan. In the appeal, they
impugned the decree of partition passed by the learned Munsiff in OS
No.203 of 1995. The contention of Sri.Sudevan before the trial court
was that the property in question was not liable to be partitioned and
that the same had been held by him on an oral lease and following that
lease he had obtained Ext.B1 from the Land Tribunal. The above
contention was repelled by the learned Munsiff on the basis of
WPC No. 20334of 2004
2
Sri.Sudevan’s oral evidence. The court, however, found that the second
appellant is a bonafide purchaser and that he will get equity to the extent
of < th share to which Sri.Sudevan was entitled in the suit property.
Sri.Sudevan died on 31.12.2000. It appears that the matter was not
reported to the court and when the appeal was peremptorily posted on
17.01.2003, the counsel for the appellant reported no instructions and
accordingly, the appeal was dismissed. IA No.2008 of 2003 seeking
condonation of delay of 867 days and a separate IA seeking the
impleadment was filed by the legal heirs of Sri.Sudevan on the ground
that they did not have any information regarding the appeal and came to
have the information only when the 3rd respondent-sister of Sri.Sudevan
received notice of the final decree. The application was resisted by the
plaintiffs. Evidence was taken and the second petitioner was examined.
The learned District Judge appreciating the evidence as well as the
circumstances attending on the case concluded that the version of the
petitioners that they came to have knowledge about the litigation only
when the 3rd respondent received notice was untrue. Even though
Sri.S.Ananthakrishnan, counsel for the petitioners would make fervent
submissions before me and even described, Ext.P1 order as unsound,
since there is no case for the respondents that there was close
relationship between the petitioners and the 3rd respondent. The
WPC No. 20334of 2004
3
learned District Judge, according to counsel was not at all right in
concluding that in view of the close relationship between Sri.Sudevan
and the 3rd respondent, the petitioners also will have information
regarding the litigation, I am not inclined to accept the submission. The
jurisdiction of this Court under Article 227 is visitorial in nature and is to
be exercised in exceptional cases. Guaging Ext.P1 by the parameters
applicable to the exercise of that jurisdiction, it cannot be said that
Ext.P1 is totally unreasonable or violative of law.
Having gone through the preliminary judgment which was
impugned in the appeal before the District Court, I find that appreciation
of DW1’s evidence by the learned Sub Judge was quite proper and that
the only relief which could have been aspired for, by the defendants is
actually granted under the preliminary decree itself. Challenge against
Ext.P1 fails on this reason also and the Writ Petition is dismissed. No
costs.
PIUS C. KURIAKOSE, JUDGE
btt
WPC No. 20334of 2004
4