PUSHPALATHA v. SUNU KUMAR
Case Details
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN TUESDAY, THE 9TH DAY OF JANUARY 2024 / 19TH POUSHA, 1945 OP(C) NO. 1777 OF 2021 IN C.M.A. NO.39/2017 OF ASSISTANT SESSIONS COURT/SUB COURT, NEYYATTINKARA IN I.A. NO.3566/2016 IN OS 4/2014 OF PRINCIPAL MUNSIFF PETITIONER/APPELLANT/DEFENDANT: COURT, NEYYATTINKARA PUSHPALATHA AGED 48 YEARS, D/O.JAGHADAMMA, PREM NIVAS, KURIYODU ROAD, PALOTTUVILA, MALAYINKEEZHU VILLAGE, THIRUVANANTHAPURAM 695 571. BY ADVS. R.T.PRADEEP M.BINDUDAS K.C.HARISH RESPONDENT/RESPONDENT/PLAINTIFF: MOHANAN AGED 61 YEARS, S/O.THANKAPPAN, MADATHUVILAKATHU VEEDU, PALOTTUVILA, MALAYINKEEZHU VILLAGE, THIRUVANANTHAPURAM 695 571. BY ADVS. S.KRISHNA GOVIND R. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
09.01.2024, ALONG WITH OP(C).1772/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P(C) Nos.1772 & 1777 of 2021 - 3 - COMMON JUDGMENT Dated, this the 09th day of January, 2024 Ext.P7 order is under challenge in O.P(C)No.1772/2021 and Ext.P6 order in O.P(C)No.1777/2021, both of the Sub Court, Neyyattinkara. Ext.P7 order is passed in C.M.A. No.38/2017, while Ext.P6 order is the one rendered in C.M.A.No.39/2017. By the impugned orders, learned Sub Judge dismissed a petition to condone the delay of 874 days in preferring an application to set aside an ex-parte decree.
2. Heard the learned counsel for the petitioner and the respondents.
3. The short point canvassed by the learned counsel for the petitioner is that the learned O.P(C) Nos.1772 & 1777 of 2021 - 4 - Munsiff had not considered the delay condonation petitions on merits; instead, it was dismissed for default for non-prosecution. If that be so, the scope of consideration in the C.M.As should have been confined to that. The learned Sub Judge has committed a serious mistake in law in having chosen to consider the delay condonation petition on merits, when the same has not been done by the learned Munsiff, is the submission made by the learned counsel for the petitioner.
4. This submission was seriously opposed by the learned counsel for the respondents. Particular emphasis was made to the conduct of the petitioner in dragging the matter, so as to keep an action hanging on the respondents for long years.
5. Having heard the learned counsel appearing on both sides, this Court finds that the O.P(C) Nos.1772 & 1777 of 2021 - 5 - contention raised by the learned counsel for the petitioner is only to be accepted. As rightly pointed out by the learned counsel, Ext.P6 and Ext.P7 orders in O.P(C) Nos.1777/2021 and 1772/2021 respectively speaks only of the dismissal of I.A.Nos.3567/2016 and 3569/2016 for non-prosecution. Nothing is seen said as regards the merits of the petition to condone the delay. However, a perusal of the impugned Ext.P6 and Ext.P7 orders would indicate that the learned Sub Judge has considered the delay condonation petition on merits and found that the delay is not properly explained. The course adopted can hardly be sustained in law. The scope of interference in the C.M.As ought to have been limited to the ground under which the delay condonation petition was dismissed, that is to say, for non-prosecution.
6. In the result, Ext.P6 and Ext.P7 orders are O.P(C) Nos.1772 & 1777 of 2021 - 6 - set aside and the matter is remitted to the Sub Court, Neyyattinkara, for fresh consideration in accordance.
7. In view of the submission made by the learned counsel for the respondents that a suit of the year 2014 is still being dragged, there will be a direction to the learned Sub Judge to hear and dispose of C.M.A.Nos.38/2017 and 39/2017, within a period of one month from the date of receipt of a copy of this judgment. The Original Petitions are disposed of, as above. Skk//09.01.2024 Sd/- C. JAYACHANDRAN JUDGE O.P(C) Nos.1772 & 1777 of 2021 - 7 - APPENDIX OF OP(C) NO.1772/2021 PETITIONER'S EXHIBITS:- EXHIBIT P1 EXHIBIT P2 EXHIBIT P3 EXHIBIT P4 EXHIBIT P5 EXHIBIT P6 EXHIBIT P7 EXHIBIT P8 EXHIBIT P9 TRUE COPY OF PLAINT DATED 1.1.2014 IN O.S.NO.7/2014 ON THE FILE OF PRINCIPAL MUNSIFF'S COURT, NEYYATTINKARA. TRUE COPY OF ORDER DATED 21.1.2019 IN S.T.NO.1535/2015 BY THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE FOR THE TRIAL OF FOREST OFFENCES, NEDUMANGAD. TRUE COPY OF SCRIBBLINGS OF SATHIKUMARI AS THE AMOUNT DUE ON CHITTY WHICH IS NIL DATED. TRUE COPY OF LETTER DATED 15.6.2016 GIVEN BY ADV. M.S.BINOD BY WHICH THE VAKALATH WAS RELINQUISHED. TRUE COPY OF ORDER DATED 17.8.2017 IN I.A.NO.3569/2016 IN O.S.NO.7/2014 BY THE COURT OF PRINCIPAL MUNSIFF, NEYYATTINKARA. TRUE COPY OF ORDER DATED 17.8.2017 IN I.A.NO.3568/2016 IN O.S.NO.7/2014 BY THE COURT OF PRINCIPAL MUNSIFF, NEYYATTINKARA. TRUE COPY OF JUDGMENT DATED 18.3.2021 IN C.M.A.NO.38/2017 BY THE COURT OF SUB JUDGE, NEYYATTINKARA. TRUE COPY OF THE ORDER DATED 29.11.2023 IN E.P. NO.163/2014 IN O.S. NO.7/2014 BY THE COURT OF THE ADDITIONAL MUNSIFF-I, NEYYATTINKARA TRUE COPY OF THE SALE NOTICE IN E.P. NO.163/2014 IN O.S. NO.7/2014 ISSUED BY THE COURT OF THE ADDITIONAL MUNSIFF-I, NEYYATTINKARA AFFIXED ON THE PROPERTY SCHEDULING THE SALE ON 10.1.2024 WITH THE SCHEDULE OF PROPERTY O.P(C) Nos.1772 & 1777 of 2021 - 8 - APPENDIX OF OP(C) NO.1777/2021 PETITIONER'S EXHIBITS:- EXHIBIT P1 EXHIBIT P2 EXHIBIT P3 EXHIBIT P4 EXHIBIT P5 EXHIBIT P6 TRUE COPY OF ORDER DATED 21.1.2019 IN S.T.NO.1535/2015 BY THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE FOR THE TRIAL OF FOREST OFFENCES, NEDUMANGAD TRUE COPY OF THE SCRIBBLINGS OF SATHIKUMARI AS THE AMOUNT DUE ON CHITTY WHICH IS NIL DATED TRUE COPY OF LETTER DATED 15.6.2016 GIVEN BY ADV. M.S.BINOD BY WHICH THE VAKALATH WAS RELINQUISHED TRUE COPY OF ORDER DATED 17.8.2017 IN I.A.NO.3567/2016 IN O.S.NO.4/2014 BY THE COURT OF PRINCIPAL MUNSIFF, NEYYATTINKARA TRUE COPY OF ORDER DATED 17.8.2017 IN I.A.NO.3566/2016 IN O.S.NO.4/2014 BY THE COURT OF PRINCIPAL MUNSIFF, NEYYATTINKARA TRUE COPY OF JUDGMENT DATED 18.3.2021 IN C.M.A.NO.39/2017 BY THE COURT OF SUB JUDGE, NEYYATTINKARA.