Yasoda vs Joy on 12 June, 2007

Kerala High Court
Yasoda vs Joy on 12 June, 2007
       

  

  

 
 
  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

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