OP(C) No. 559 of 2012 · Kerala High Court

OP(C) NO. 559/2012 APPENDIX PETITIONER(S) EXHIBITS EXT.P1TRUE COPY OF THE PLAINT IN O.S. 121 OF 2004 ON THE FILE OF THE MUNSIFF'S COURT PARAVUR.EXT.P2TRUE COPY OF THE JUDGMENT DATED 28.6.2006 IN O.S. 121 OF 2004 OF THE MUNSIFF'S COURT PARAVUR.EXT.P3TRUE COPY OF I.A. 216 OF 2009 IN O.S. 121 OF 2004 OF THE MUNSIFF'S COURT PARAVUR.EXT.P4TRUE COPY OF I.A. 215 OF 2009 IN O.S. 121 OF 2004 OF THE MUNSIFF'S COURT PARAVUR.EXT.P5TRUE COPY OF THE ORDER DATED 27.7.2009 IN I,.A. 216 OF 2009 AND I.A. 215 OF 2009 IN O.S. 121 OF 2004 OF THE MUNSIFF'S COURT PARAVUREXT.P6TRUE COPY OF THE MEMORANDUM OF APPEAL IN C.M.A. 70 OF 2010 OF THE DISTRICT COURT KOLLAMEXT.P7TRUE COPY OF I.A.672 OF 2010 IN CMA 70 OF 2010 OF THE DIOSTRICT COURT KOLLAMEXT.P8TRUE COPY OF THE ORDER DATED 15.11.2011 IN I.A. 1672 OF 2010 IN C.M.A. 70 OF 2010 ON THE FILE OF THE DISTRICT COURT,KOLLAMEXT.P9TRUE COPY OF THE JUDGMENT DATED 15.11.2011 IN C.M.A 70 OF 2010 ONTHE FILE OF THE DISTRICT COURT,KOLLAMEXT.P10TRUE COPY OF THE MEDICAL RECORDS ISSUED BY DR.CHANDRANGATHA ASARI OF ASWINI HOSPITAL.EXT.P11TRUE COPY OF THE LETTER RELINQUISHING THE VAKALATH DATED 6.7.2010 ADVOCATE KRISHNA KUMAR.EXT.P12TRUE COPY OF THE COMMISSION REPORT OF THE COMMISSIONER FILED BEFORE THE DISTRICT COURT,KOLLAM IN CMA 70/2010 OF THE DISTRICT COURT,KOLLAMEXT.P13TRUE COPY OF THE DEPOSITION OF THE DOCTOR IN CMA 70/2010 OF THE DISTRICT COURT,KOLLAM. RESPONDENTS' EXHIBITS EXT.R1(a)A TRUE COPY OF THE SALE DEED NO. 1763/79 DATED 25.04.1979 EXECUTED IN FAVOUR OF RESPONDENT/PLAINTIFF BY ORIGINAL DEFENDANT AND OTHERS.EXT.R1(b)A TRUE COPY OF THE RESURVEY PLAN DATED NIL. OP(C) NO. 559/2012EXT.R1(c)A TRUE COPY OF THE ADVOCATE COMMISSIONER'S REPORT AND PLAN DATED 22.06.2004 IN OS NO. 121/2004 ON THE FILES OF THE MUNSIFF MAGISTATE COURT, PARAVUR.EXT.R1(d)A TRUE COPY OF THE PHOTOGRAPHS OF THE PATHWAY DATED NIL.EXT.R1(e)A TRUE COPY OF THE JUDGMENT DATED 29.09.2003 IN O.S. NO. 158/2000 PASSED BY THE MUNSIFF'S MAGISTRATE COURT, PARAVUR.EXT.R1(f)A TRUE COPY OF THE REPORT DATED 06.08.2010 SENT TO THE JUDICIAL FIRST CLASS MAGISTRATE COURT, PARAVUR BY THE FINGER PRINT BUREAU.EXT.R1(g)A TRUE COPY OF THE DOCUMENT 1304/1953 EXECUTED BY KESAVAN AND NANI IN FAVOUR OF ORIGINAL DEFENDANT'S HUSBAND, SUKUMARAN AND OTHERS./TRUE COPY/P.A. TO JUDGE. V. CHITAMBARESH, J--------------------------------OP(C) NO. 559 OF 2012------------------------------------Dated this the 8th day of August, 2012JUDGMENTThe suit was one for a decree of permanent prohibitory injunction based on an easement by grant. The defendant was set ex-parte and the trial court decreed the suit as prayed for. The grant of easement is prima facie evident by the sale deed executed by the defendant in favour of the plaintiff.

An application to set aside ex-parte decree under Order IX Rule 13 of the Code of Civil Procedure was filed witha delay of 948 days. The trial court found that no sufficient cause has been established and dismissed the application.

A Civil Miscellaneous Appeal before the lower appellate court was filed with a further delay of 1485 days. The lower appellate court thought it fit not to condone the inordinate delay in filing the appeal.

The petitioners rely on the evidence of the Doctorand the report of the Advocate Commissioner who attempted to record evidence. This is hardly sufficient to condone the inordinate delay of about seven years in total. 2OP(C) No. 559/2012No grounds sufficient enough to set aside the ex-partedecree have been made out. The concurrent orders of the court below do not suffer from any error of jurisdiction. The OriginalPetition fails and is dismissed.V. CHITAMBARESH JUDGEncd