IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 27TH JANUARY 2011 / 7TH MAGHA 1932 OP(C).No. 354 of 2011(O) ---------------------------------- AGAINST THE ORDER DTD. 3.1.2011 OF PRINCIPAL SUB COURT, ERNAKULAM IN IA. NOS. 8306/2010 AND 8307/2010 IN OS. 358/2005). .... PETITIONER (S): PETITIONER/2ND DEFENDANT ---------------------------------------------------------------------- BORGIA THOMAS, AGED 45 YEARS, S/O.LATE C.C.THOMAS, RESIDING AT CHAKALAYIL HOUSE, C/O.B.C.JOSEPH, VEMBANATTU HOUSE, KEERTHY NAGAR NO.2, CHAMPAKKARA CHURCH ROAD, MARADU P.O., PIN-682 304. BY ADV. SRI.JEFF JOSEPH SRI.K.V.VIMAL RESPONDENT(S): RESPONDENT/PLAINTIFFS/DEFENDANTS 1 AND 3-13. ------------------------------------------------------------------------------------------------------ 1. C.C.THOMAS, AGED 86 YEARS (DIED), S/O.CHIMMARU, CHAKKALAYIL HOUSE, PERUMANOOR DESOM, ERNAKULAM, REPRESENTED BY HIS NEXT FRIEND AND GUARDIAN (SON) THOMAS KUNJUKUNJU, AGED 54 YEARS, S/O.C.C.THOMAS, CHAKKALAYIL HOUSE, PERUMANOOR DESOM,EKM,PIN-682015 2. THOMAS KUNJUKUNJU, AGED 54 YEARS, S/O.C.C.THOMAS, CHAKKALAYIL HOUSE, PERUMANOOR DESOM, ERNAKULAM, PIN-682 015. 3. SUNDARESHAN, AGED 42, S/O.KARUNAKARAN, PADMAVILASAM HOUSE, S.R.P.MARKET P.O., THAZHAVA, KARUNAGAPPILLY, PIN-690 523. 4. BABY THOMAS, AGED 77 YEARS, W/O.C.C.THOMAS, C/O.JOSEPH THOMAS, S/O.C.C.THOMAS, CHAKKALAYIL HOUSE, SURABHI NAGAR, LIG 157, KAKKANAD, PIN-682 030. OP(C) NO.354/2011 5. BOSY THOMAS, AGED 50 YEARS, S/O.C.C.THOMAS, CHAKKALAYIL HOUSE, NEAR NELLU GAVESHANA KENDRAM, CHALIKKAVATTOM, VYTTILA, PIN-682 019. 6. JOSEPH THOMAS, AGED 48 YEARS, S/O.C.C.THOMAS, CHAKKALAYIL HOUSE, SURABHI NAGAR, L.I.G.157, KAKKANAD, PIN-682 030. 7. KUNJUMON @ FRANCIS XAVIER, AGED 34 YEARS, S/O.C.C.THOMAS, CHAKKALAYIL HOUSE, C/O.JOSEPH THOMAS, SURABHI NAGAR, L.I.G.157, KAKKANAD, PIN-682 030. 8. MRS.MOLY JOHNY, AGED 46 YEARS, PALLATHU HOUSE, PUTHIYA ROAD, PALARIVATTOM, KOCHI-682 025. 9. MRS.LISSY PATRIC, AGED 38 YEARS, SAMUEL VILLA, M.T.M. 820, MANDYA, KARNATAKA STATE, PIN-540 701. 10. MRS.JANET JOMON, AGED 42 YEARS, W/O.JOMON, C/O.JOSEPH THOMAS, S/O.C.C.THOMAS, CHAKKALAYIL HOUSE, SURABHI NAGAR, LIG.157, KAKKANAD, PIN-682 030. 11. MRS.LEENA MARTIN, AGED 30 YEARS, W/O.MARTIN, PALLAYATHIL HOUSE, NEAR ST.JAMES, CHAMPAKARA, MARADU P.O., COCHIN-682 304. 12. MRS.GIGI BENNY, AGED 20 YEARS, W/O.BENNY, C/O.JOSEPH THOMAS, S/O.C.C.THOMAS, CHAKKALAYIL HOUSE, SURABHI NAGAR, L.I.G.157, KAKKANAD-682 030. 13. SISTER JESMI, AGED 36 YEARS, PRESENTATION CONVENT CHERIAL P.O., WARANGAL DISTRICT, ANDHRA PRADESH, PIN-506 223. 14. MRS.KUNJUMOL SUNDRESHAN, AGED 38 YEARS, PADMAVILASAM HOUSE, S.R.P.MARKET P.O., THAZHAVA, KARUNAGAPALLY-690 523. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 27/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss K.T.SANKARAN, J. ------------------------------ O.P(C).No.354 OF 2011 ------------------------------ Dated this the 27 th day of January, 2011 JUDGMENT The second defendant in O.S.No.358 of 2005 on the file of the Court of the Subordinate Judge, Ernakulam filed I.A.No.8306 of 2010 to receive the written statement in the case. I.A.No.8307 of 2010 was filed to remove the suit from the special list. The suit was filed to set aside the document executed by C.C.Thomas, the deceased first plaintiff, in favour of the first defendant, who is none other than his son-in-law. The petitioner(second defendant) is the son of C.C.Thomas. The other children of C.C.Thomas are also in the party array in the suit. 2. The petitioner did not appear before the court. It is stated that he did not receive any summons. According to the petitioner, he was working abroad and he was not aware of the proceedings. O.P(C).No.354 OF 2011 2 3. The court below took note of the fact that the learned counsel proposed to file vakalath for the petitioner herein in the year 2006, but no such vakalath was filed. The petitioner(second defendant) did not enter appearance at any point of time. The recording of evidence was partly over. At that juncture, the petitioner filed the present application to permit him to file a written statement. 4. The court below held that the petitioner was aware of the proceedings. The respondents put forward a contention that the wife of the petitioner was present in court when evidence was being recorded. Taking into account all the relevant facts, the relationship between the parties, the nature of the suit and the fact that the trial of the suit has commenced, the court below held that the application cannot be allowed. O.P(C).No.354 OF 2011 3 5. The learned counsel for the petitioner submitted that the first defendant has filed a counter claim in which he has sought for a relief against the petitioner herein as well. The counter claim was filed in September, 2005. That is not a ground to allow the petitioner to file the written statement at this point of time. 6. The court below has stated cogent reasons for dismissing the applications. No grounds are made out for entertaining the Original Petition under Article 227 of the Constitution of India. Accordingly, the Original petition is, dismissed. The learned counsel for the petitioner submitted that the second defendant was not set ex parte in the proceedings. If so, nothing prevents the second defendant from participating in the proceedings in the suit in accordance with law. K.T.SANKARAN, JUDGE. cms