IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P. BHAVADASAN TUESDAY, THE 26TH MAY 2009 / 5TH JYAISHTA 1931 FAO.No. 108 of 2004() --------------------- AGAINST THE ORDER IN IA 6277/03 & 6276/03 IN OS.143/1999 of PRL.S.C.,THALASSERY .................... APPELLANT/PETITIONER/DEFENDANT: ------------------------------------------------------- K.M.VIKRAMAN NAMBIAR, KEERTHI NIVAS, KALAYAD AMSOM, PUTHALAM DESOM. BY ADV. SRI.MOHANAN V.T.K. RESPONDENT(S)/RESPONDENT/PLAINTIFF: ------------------------------------------------------------ M.SHEEBA S/O.RAMACHANDRAN, AGED 31 APSARA, PANOD AMSOM, DESOM, THALASSERY. ADV. SRI.R.PARTHASARATHY FOR R1 SMT.S.LAKSHMY FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 26/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 108 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of May, 2009. JUDGMENT Raman, J, This is an appeal against an order dismissing the application filed under Order IX Rule 13 of the Code of Civil Procedure by the first defendant in the suit. 2. Suit is one for specific performance of an agreement. Appellant was the owner of the property and the first defendant in the suit. He filed a written statement contending that he sold the property in favour of the second defendant. As such, the real person, who is aggrieved in case ultimately a decree is eventually passed in favour of the plaintiff is the second defendant, since the first defendant had no surviving interest over the property as on the date on which he filed the written statement. The second defendant contested the matter, take up all possible pleas and finally a decree was passed in favour of the plaintiff granting specific performance. The first defendant thereafter contended that he was laid up from September, 2002 to September, 2003 and therefore he was not in a position to attend the court F.A.O.108/2004. 2 when the suit came up for trial. The case was listed on 10.10.2002, and on that day the plaintiff filed his affidavit for chief examination and the case was adjourned to 17.10.2002 at the request of the defendant. P.W.1 was cross-examined on 17.10.2002. Exts.A1 to A4 documents were marked. The matter was posted for further evidence on 19.10.2002. On that day P.W.2 was examined on the plaintiff's side and plaintiff's evidence was closed. Second defendant gave evidence as D.W.2. Exts .B1 to B4 were marked and the evidence was closed. Arguments were heard on 22.10.2002 and adjourned for hearing to 24.10.2002 and after hearing the parties judgment was pronounced on 30.10.2002. Both defendants 1 and 2 had raised identical contentions in the written statement. Therefore, the plea to re-open the case at the instance of the first defendant on the ground that he was laid up for more than an year disabling him to attend the trial did not instill confidence in the mind of the court. It also found that the contention is bereft of bonafides. The judgment and decree were passed on merits. If at all the person interested to fight out the case is the second defendant, nothing prevented him from filing an appeal if he is so F.A.O.108/2004. 3 aggrieved. As far the first defendant is concerned, as already stated, he had no surviving interest in the property. Therefore, this is nothing but an attempt to drag the proceedings at the instance of the second defendant by the first defendant. 3. In such circumstances, we find that the court below was perfectly right in dismissing the application filed under Order IX Rule 13 CPC. The delay in filing the petition itself was not properly explained. No materials were placed in support of the reasons put forth in the delay petition. Except the ipse dixit, the petitioner did not give any evidence. In the above facts and circumstances, we hardly find any reason to interfere with the order passed by the court below. The appeal is dismissed. P.R. Raman, Judge P. Bhavadasan, Judge sb.