Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH WEDNESDAY, THE19H DAY OF FEBRUARY201430TH MAGHA, 1935 CRP.No. 511 of 2013 ----------------------------- [AGAINST COMMON ORDER
DATED1806/2013 PASSED IN I.A. NO.1876 OF 2012 AND I.A. NO.1877 OF 2012 IN O.S. NO.215 OF 2011 ON THE FILES OF THE MUNSIFF'S COURT, CHALAKKUDY] .............. PETITIONER/1ST RESPONDENT/PLAINTIFF: -------------------------------------------------------------- ANTO, AGED56YEARS, S/O.THOMMAN, PALLIPURATHPARAMBIL THEKKAN HOUSE, MURINGOOR THEKKUMMURI VILLAGE, MUKUNDAPURAM TALUK, NALUKETTU P.O, PIN -680 308. BY ADVS.SRI.P.N.RAMAKRISHNAN NAIR, SRI.P.VISWANATHAN. RESPONDENTS/PETITIONERS1TO4 6 TO8 RESPONDENTS2TO7& LEGAL REPRESENTATIVES OF5H PETITIONER/DEFENDANTS910,14,15,17,18,20 & DEFENDANTS1TO4 6,13 & LEGAL REPRESENTATIVES OF DECEASED16H DEFENDANT: ----------------------------------------------------------------------------------------------------------------- 1. KOCHUTHRESSIA, AGED ABOUT68YEARS, D/O.PALLIPPURATHPARAMBIL THEKKAN DEVASSY,MELOOR VILLAGE, MUKUNDAPURAM TALUK, MELOOR P.O, PIN CODE- 680 311, NOW RESIDING AT43214, 2ND FLOOR, S.R.M ROAD, HAMSAKUNJU LANE, KOCHI -682 018.
2. ANNIE, AGED ABOUT64YEARS, D/O.PALLIPPURATHPARAMBIL THEKKAN DEVASSY,MELOOR, PIN CODE- 680 311, NOW RESIDING AT WARRIAMPARAMBIL HOUSE, THUKKATTUSERY P.O, CHERTHALA, PIN CODE- 688 528.
3. SHEEBA, AGED ABOUT52YEARS, D/O.PALLIPPURATHPARAMBIL THEKKAN DEVASSY,MELOOR.P.O., PIN CODE- 680 311, NOW RESIDING AT MANGALI HOUSE, VAZHAKAD, THURAVOOR P.O, ANGAMALLY, PIN CODE- 683 586. Prv. C.R.P.NO.511/2013:
4. SHINEY,AGED ABOUT48YEARS, D/O.PALLIPPURATHPARAMBIL THEKKAN DEVASSY,MELOOR.P.O., PIN CODE- 680 311, NOW RESIDING AT THYKATTIL HOUSE, VENKIDANGU P.O, PIN CODE -680 510.
5. NISHITHA, AGED20YEARS, D/O.PALLIPPURATHPARAMBIL THEKKAN ROSILY,MELOOR, MELOOR.P.O.,PIN CODE- 680 311, NOW RESIDING AT KOLENCHERRY HOUSE, MANIKKAMANGALAM P.O, PIN CODE- 683 574.
6. NIHITHA, AGED ABOUT19YEARS, D/O.PALLIPPURATHPARAMBIL THEKKAN ROSILY,MELOOR, MELOOR.P.O.,PIN CODE- 680 311, NOW RESIDING AT KOLENCHERRY HOUSE, MANIKKAMANGALAM P.O, PIN CODE- 683 574.
7. MISS. NIYA (MINOR), AGED ABOUT16YEARS (MINOR), REP.BY GUARDIAN SISTER NISHITHA, D/O.PALLIPPURATHPARAMBIL THEKKAN ROSILY,MELOOR, NOW RESIDING AT KOLENCHERRY HOUSE, MANIKKAMANGALAM P.O, PIN CODE- 683 574.
8. JOHNY, AGED ABOUT66YEARS, S/O.DEVASSY , PALLIPURATH PARAMBIL THEKKAN HOUSE, MELOOR VILLAGE, NOW RESIDING AT PALLIPURATHUPARAMBIL THEKKAN HOUSE, MURIGOOR, DIVIN FARM, PIN- 680 309.
9. JAMES, AGED ABOUT62YEARS, S/O.DEVASSY, PALLIPURATH PARAMBIL THEKKAN HOUSE, MELOOR VILLAGE, NOW RESIDING AT NEW MILLENNIUM ROAD, KUMARANELLOOR P.O, PIN- 686 016. 10.POLY,AGED ABOUT57YEARS, S/O, .DEVASY, PALLIPURATH PARAMBIL THEKKAN HOUSE, MELOOR VILLAGE, PIN CODE- 680 311. 11.SHAJI, AGED ABOUT46YEARS, S/O.DEVASSY, PALLIPURATH PARAMBIL THEKKAN HOUSE, MURIGOOR , DIVINE FARM, PIN CODE - 680 309. 12.M.K.ANTONY, AGED ABOUT70YEARS, S/O.KUNJUVAREED, MALAKKARAN HOUSE, VIJAYA COFFEE WORKS, PALLIPPURAM, BUILDING, CHALAKKUDY, PIN CODE-680 307. 13.PETER, AGED ABOUT57YEARS, S/O.PALLIPPURATHPARAMBIL THEKKAN DEVASSY, MELOOR P.O, PIN -680 311.
14. ANTO K.JOSEPH, AGED ABOUT48YEARS, S/O.K.K.JOSEPH, KUNNATHOTTATHIL HOUSE, NEELESWARAM P.O, KALADY , PIN CODE - 683 584. Prv. C.R.P.NO.511/2013:
15. MISS ASHLYANTO, AGED ABOUT15YEARS, D/O.ANTO K.JOSEPH, (MINOR), KUNNATHOTTATHIL HOUSE, NEELESWARAM P.O, KALADY , PIN CODE - 683 584, REPRESENTERD BY HIS NATURAL GUREADIAN AND FATHER ANTO K.JOSEPH, S/O.K.K.JOSEPH, KUNNATHOTTATHIL HOUSE, NEELESWARAM P.O, KALADY, PIN CODE- 683 584. 16.ASHWIN ANTO, AGED ABOUT13YEARS, S/O.ANTO K.JOSEPH, (MINOR), KUNNATHOTTATHIL HOUSE, NEELWSWARAM P.O, KALADY , PIN CODE - 683 584, REPRESENTED BY HIS NATURAL GUREADIAN AND FATHER ANTO K.JOSEPH, S/O.K.K.JOSEPH, KUNNATHOTTATHIL HOUSE, NEELESWARAM P.O, KALADY, PIN CODE -683 584. R1 TO R7 & R14 TO R16 BY ADVS. SRI.PHILIP J.VETTICKATTU, SRI.B.PREMNATH (E), R8 TO R11 & R13 BY ADVS. SRI.MURALI PURUSHOTHAMAN, SRI.DEEPU LAL MOHAN. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON1902-2014,ALONG WITH O.P.(C).NO.423/2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Prv. V.CHITAMBARESH,J.
= = = = = = = = = = = C.R.P No.511 of 2013 & O.P.(C) No.423 of 2014 = = = = = = = = = = = == = = = = Dated this the 19th day of February, 2014 ORDER
The suit in O.S No.215/2011 is one for declaration of title and for a consequential injunction restraining defendant Nos.6,7 and 8 from paying the rent to defendant Nos.1 to 5. There is also a prayer for recovery of possession of the plaint schedule property leased out. The plaintiff claimed title under Ext.A1 sale deed executed by one Kochuthressia who was the mother of one Devassy. Defendant Nos.1 to 4 are some of the children of Devassy and defendant No.5 is his widow. Defendant Nos.1 to 5 contended that the property belonged to Devassy only and it was purchased Benami in the name of Kochuthressia.
2. Defendant Nos. 6 to 10, 12 and 14 to 21 were set exparte in the suit and a decree passed. The prayer for recovery of possession alone was declined on the premise that the property falls within the notified area under the Rent Control C.R.P No.511 of 2013 2 and con.case Act. Subsequently defendant Nos.9,10,14,15,16,17,18 and 20 filed I.A Nos. 1876/2012 and 1877/2012. I.A No.1876/2012 was filed to condone the delay and I.A No.1877/2012 was filed to set aside the exparte decree in the suit. The aforesaid applications were allowed by the trial court against which C.R.P No.511/2013 has been filed by the plaintiff.
3. The fourth defendant alone filed an appeal against the decree in A.S No.141/2012 on the file of the Court of the Subordinate Judge of Irinjalakuda. The applicants in I.A Nos.1876/2012 and 1877/2012 contended that they knew about the decree only on receipt of notice in A.S No.141/2011. The delay in seeking to set aside the exparte decree is only 48 days which is not inordinate.
4. The court below has thought it fit to set aside the exparte decree in order to enable those defendants to contest the suit on merits. I do not find any ground to interefere with the said order in exercise of the jurisdiction under Section 115 of the Code of Civil Procedure.
5. The fifth defendant died on 12-5-2004 and defendant Nos.9 to 16 were also impleaded in addition to defendant Nos.1 C.R.P No.511 of 2013 3 and con.case to 4 (already on the party) as her legal heirs. Defendant Nos.1 to 4 filed I.A No.1494/2013 to amend the written statement filed in the suit. It may at once be noticed that defendant Nos.1 to 4 as well as defendant Nos.9 to 16 claim under the fifth defendant (widow of Devassy). Defendant Nos.9,10,14,15 and 16 have already been permitted to contest the suit on merits since the exparte decree as against them is set aside. Therefore the motion made to amend the written statement cannot be rejected on the ground that the exparte decree as against defendant Nos.1 to 4 has not been set aside. This is because the proviso to Order IX Rule 13 of the Code of Civil Procedure envisages a situation where the decree can be set aside against all the defendants if it is indivisible and a common title is claimed.
6. Resultantly, I. A No.1494/2013 in O.S No.215/2011 on the file of the Court of the Munsiff of Chalakudy is allowed and Ext.P10 order in O.P(C) No.423/2014 is set aside. It is also clarified that the exparte decree in O.S No.215/2011 is set aside in toto under the proviso to Order IX Rule 13 of the Code of Civil Procedure (which is the effect of allowing I.A Nos.1876/2012 and 1877/2012). Every endeavour shall be made by the Court of the C.R.P No.511 of 2013 4 and con.case Munsiff of Chalakudy to dispose of O.S No.215/2011 on its file before the court closes for summer recess. The Civil Revision Petition and the Original Petition is disposed of. V.CHITAMBARESH JUDGE smm