IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 24TH NOVEMBER 2010 / 3RD AGRAHAYANA 1932 OP(C).No. 850 of 2010(O) ------------------------ AGAINST THE ORDER IN IA.198/2008 IN CMA.6/2008 of SUB COURT, NEDUMANGAD OS.224/1990 of ADDL.MUNSIFF COURT,NEDUMANGAD (IA.1264/2007) .................... PETITIONERS: ------------------------------ 1. LEELA ,CHERUVILA VEEDU, POOCHAKUNNU, ARAMTHANAM, ANAKUDI MURI, VAMANAPURAM VILLAGE, 2. RAJAMMA, CHERUVILA CHERUVILA VEEDU, POOCHAKUNNU, ARAMTHANAM, ANAKUDI MURI, VAMANAPURAM VILLAGE, BY ADV. SRI.C.SATHYARAJ SRI.JIJO PAUL KALLOOKKARAN RESPONDENTS: --------------- 1. SADASIVAN NADAR, VALIYAVILAKATHU PUTHEN VEEDU,MADANKAVU,POOCHAKUNNU ARAMTHANAM,ANAKUDI MURI,VAMANAPURAM VILLAGE-695606 2. DEVADASAN NADAR, VALIYAVILAKATHU PUTHEN VEEDU,MADANKAVU,POOCHAKUNNU ARAMTHANAM,ANAKUDI MURI,VAMANAPURAM VILLAGE-695606 3. VASANTHA, PRANAVAN, POOCHAKUNNU,ARAMTHANAM,ANAKUDI MURI, VAMANAPURAM VILLAGE-695606 4. BEENA,MAYOORAVILASOM, POOCHAKUNNU,ARAMTHANAM,ANAKUDI MURI, VAMANAPURAM VILLAGE-695606 5. GEETHA, SURESH BHAVAN, POOCHAKUNNU,ARAMTHANAM,ANAKUDI MURI, VAMANAPURAM VILLAGE-695606 6. BABY, SALOM VEEDU, POOCHAKUNNU,ARAMTHANAM,ANAKUDI MURI VAMANAPURAM VILLAGE-695606 7. DEVADAS, CHERUVILA VEEDU POOCHAKUNNU,ARAMTHANAM,ANAKUDI MURI VAMANAPURAM VILLAGE-695606 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 24/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.850 of 2010 --------------------------------------- Dated this 24th day of November, 2010 JUDGMENT Petitioners before me are the appellants in C.M.A.No.6 of 2008 of the court of learned Sub Judge, Nedumangad. Respondents filed O.S.No.224 of 1990 in the court of learned Additional Munsiff, Nedumangad for recovery of possession of the suit property on the strength of title from petitioner and their deceased mother. Petitioner and others filed O.S.No.158 of 2001 for a decree for prohibitory injunction against respondents in respect of the same property. According to the petitioners the suit property belonged to their father who deserted them and their deceased mother and later, executed assignment deed No.221 of 1980 dated 18-01-980 in favour of respondents and their deceased mother. Petitioners alleged in O.S.No.158 of 2001 and claimed O.S.No.224 of 1990 that they have perfected title over the suit property by adverse possession and limitation having been in possession and enjoyment of the property for more than 30 years. In the meantime, petitioners had approached the Land Tribunal with an application for purchase of landlords' rights. Their father (who later executed assignment deed No.221 O.P(C).No.850 of 2010 : 2 : of 1980 in favour of respondents and their deceased mother) was impleaded as additional applicant No.6. The Land Tribunal entered a primary finding in favour of additional applicant No.6 (father of petitioners). The suits came up for trial in the list on 23-01-2007. In the meantime, Advocate Commissioner filed Ext.P3, report in O.S.No.224 of 1990 stating that certain portion of the suit property is in the possession of third parties. Petitioners got those persons impleaded as additional defendants in O.S.No.158 of 2001. They however did not file any written statement till 04-01-2001. The case was posted for trial in the list. While so, petitioners filed application for appointment of an Advocate Commissioner to ascertain extent of encroachment in the possession of additional defendants impleaded in O.S.No.158 of 2001. That application was dismissed by Ext.P3, order dated 08-02-2007 observing that there is already a report on record. Thereafter the cases were posted for trial in the list on 23-01- 2007. In the absence of petitioners, O.S.No.158 of 2001 was dismissed and in O.S.No.224 of 1990 a decree for recovery of possession on the strength of title was granted. Petitioners filed I.A.No.1264 of 2007 for restoration of O.S.No.158 of 2001 and to set aside the ex parte decree in O.S.No.224 of 1990. Learned O.P(C).No.850 of 2010 : 3 : Munsiff allowed that application on condition of payment of cost of `.1500/-. Petitioners did not pay the cost and hence I.A.No.1264 of 2007 was ultimately dismissed. Petitioners challenged that order before the learned Sub Judge in C.M.A.No.6 of 2008 with an application to condone the delay of 174 days. Learned Sub Judge dismissed the application to condone delay and consequently the C.M appeal, which order is challenged in this petition. Learned counsel for petitioners contended that learned Sub Judge ought to have condoned the delay in filing the C.M appeal. It is also contended that there was no delay on the part of petitioners in filing I.A.No.1264 of 2007 so that they could be saddled with liability for payment of cost. At any rate, learned Sub Judge ought to have granted sufficient time to pay the cost. 2. I have heard learned counsel at length. I must bear in mind that respondents filed the suit for recovery of possession on the strength of title in the year 1990 and now almost 20 years have elapsed. On the side of petitioners they filed the suit for injunction in the year 2001. In O.S.No.224 of 1990, it is not disputed that the father of petitioners executed assignment deed No.221 of 1980 dated 18-01-1980 in favour of respondents and O.P(C).No.850 of 2010 : 4 : their deceased mother, contention of petitioners being that they have perfected title by adverse possession and limitation. It is seen from the common judgment of learned Munsiff (Ext.P4) that in the meantime, petitioners had filed O.S.No.37 of 1981 in the court of learned Munsiff against respondents in the same court for a decree for prohibitory injunction and that suit was dismissed on merit but, court held that assignment deed No.221 of 1980 dated 18-01-1980 is valid and that respondents are entitled to recover possession of the suit property on the strength of title. It is not disputed, that decision has become final. So much on the contentions raised by the parties. 3. Now the question is whether interference with the impugned order is required. I stated that the suits were disposed of by Ext.P4, common judgment on 20-02-2007 and petitioners filed a single application for restoration of the suit dismissed for default and to set aside the ex parte decree as I.A.No.1264 of 2007. Notwithstanding the technical defect learned Munsiff was inclined to allow that application on cost of `.1,500/-. Admittedly, that amount was not paid and C.M.A.No.6 of 2008 was preferred with a delay of 174 days. Reason stated is that the deponent was not in station and that he was under a mistaken notion that he O.P(C).No.850 of 2010 : 5 : got one months' time after getting copies and there happened to be a delay of 174 days. It is clear that the application for copy was not presented on time. Learned Sub Judge in the circumstances found that “it is seen that there is no sufficient reason to condone the delay”. 4. I started by saying that the litigation started in the year 1990. After 20 years it is hard to say that the decree has to be set aside and send back for fresh trial. I must bear in mind that the cost ordered by the learned Munsiff on I.A.No.1264 of 2007 was only `.1,500/-, not that much big an amount which petitioners could not have raised and paid within the time aforesaid. Having these aspects in mind I do not find reason to interfere with the order. Petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-