IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 3RD FEBRUARY 2010 / 14TH MAGHA 1931 FAO.No. 208 of 2006 ----------------------------- AGAINST THE ORDER DATED 25/03/2006 IN IA .NO.1798/05 IN OS.NO.275/1996 OF SUB COURT, OTTAPPALAM. .................... APPELLANT/PETITIONER: ------------------------------------- LEELA ANTHARJANAM, W/O. KUMARAPULAKKAL MANAKKAL NARAYANAN NAMBOODIRI, CHERUKUDANGAD AMSOM, PALLIPPURAM DESOM, OTTAPPALAM TALUK,REPRESENTED BY POWER OF ATTORNEY HOLDER, M.CHANDRAN,S/O.MANIYOTH CHAKKAPPI, PATHUPPANAM VILLAGE, DESOM, VADAKARA TALUK. BY ADVS. MR.K.B.PRADEEP, MR.S.R.AJITH. RESPONDENTS/RESPONDENTS: ----------------------------------------------- 1. KRISHNAN, S/O. LATE PURUSHOTHAMAN NAMBOODIRI, CHERUKUDANGAD AMSOM, PALLIPPURAM DESOM, OTTAPPALAM TALUK. 2. SAVITHRY @ KANYAKA ANTHARJANAM, D/O. LATE PURUSHOTHAMAN NAMBOODIRI, CHERUKUDANGAD AMSOM, PALLIPPURAM DESOM, OTTAPPALAM TALUK. 3. VASUDEVAN NAMBOODIRI, S/O. PURUSHOTHAMAN NAMBOODIRI (LATE), CHERUKUDANGAD AMSOM, PALLIPPURAM DESOM, OTTAPPALAM TALUK. F.A.O. NO.208/2006: 4. THANKAM @ SREEDEVI, D/O.LATE PURUSHOTHAMAN NAMBOODIRI, CHERUKUDANGAD AMSOM, PALLIPPURAM DESOM, OTTAPPALAM TALUK. 5. NARAYANAN NAMBOODIRI, W/O. LATE PURUSHOTHAMAN NAMBOODIRI, CHERUKUDANGAD AMSOM, PALLIPPURAM DESOM, OTTAPPALAM TALUK. R1 BY ADVS. MR.T.SETHUMADHAVAN, MR.PUSHPARAJAN KODOTH, MR.K.JAYESH MOHANKUMAR. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 03/02/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P.R.RAMAN & S.S.SATHEESACHANDRAN, JJ. ------------------------------------------------ C.M. Application No.914 of 2006, C.M. Application No.1280/09, I.A.Nos.2804/09 & 2805/09 & F.A.O.No.208 of 2006 ----------------------------------------------- Dated this the 3rd day of February, 2010 JUDGMENT S.S.SATHEESACHANDRAN,J. The challenge raised in the appeal is against the order passed by the learned Sub Judge, Ottappalam, dismissing an application moved by the petitioner/plaintiff for restoration of her suit under Order IX Rule 9 of the Code of Civil Procedure. Appeal being preferred with a petition to condone the delay, notice was ordered to the respondents. Only the 1st respondent entered appearance. Notice issued to the 4th respondent was returned with an endorsement “she is no more”. Petitioner, thereupon, moved an application for impleading the legal representatives of the 4th respondent, along with petitions to set aside the abatement, after condoning the delay of 2075 days. 2. First respondent has filed a counter affidavit impeaching the cause shown for impleadment and also for setting aside abatement. C.M. Appln. No.914 of 2006 & F.A.O.No.208 of 2006 :: 2 :: 3. We heard the counsel for the petitioner and also for the first respondent. A copy of the plaint in the suit, dismissed for default, as directed by us, was handed over for perusal. 4. It is noticed that two among the defendants (defendants 2 and 7) had passed away pending trial and despite direction issued by the court, petitioner/plaintiff had not got their legal representatives on record. Plaintiff had filed the suit through her Power of Attorney Holder and on the date when the case was posted, neither the plaintiff nor her agent was present and the suit was dismissed for default. In the enquiry on the application moved for restoring the suit dismissed for default, no evidence was let in to substantiate the cause, if any, for the absence of the plaintiff on the date of hearing. The learned Sub Judge, being satisfied that the plaintiff had not made out sufficient cause for setting aside the order of dismissal, dismissed the application for restoring the suit. C.M. Appln. No.914 of 2006 & F.A.O.No.208 of 2006 :: 3 :: 5. Perusing the copy of the plaint handed over, we noticed that the suit has been filed for a declaration to set aside some documents allegedly executed by the plaintiff in favour of some of the defendants, pursuant to a long drawn litigation as between her late husband and the defendants. Previous suit, referred to above, had been agitated at several levels including this court; and after the death of her husband, at a time when she was mentally imbalanced, the defendants obtained some documents received from her, was the gist of the case of the plaintiff, to seek the relief of declaration for setting aside such documents. The documents are stated to have been obtained in 1986 and the present suit is seen instituted in 1996. The restoration application after the dismissal of such a suit is seen filed in 2005. 6. We find, there is total absence of material allegations in the plaint, whether her mental illness canvassed continued through the period from the date of execution of the deeds, till the institution of the suit or C.M. Appln. No.914 of 2006 & F.A.O.No.208 of 2006 :: 4 :: whether she had lucid intervals during the period. Learned counsel for the 1st respondent has also brought to our notice that the final decree proceedings in the previous suit, which is stated to be one for partition, in which the petitioner had also been brought in as the legal heir of her husband, consequent to his death, is still pending before the court. 7. In the above back drop of the facts and circumstances presented and also where the 4th respondent had passed away even long before the passing of the impugned order and that no evidence was let in by the plaintiff to substantiate the cause for her absence when the suit was posted for hearing, we find that there is no reason to condone the delay in setting aside abatement and impleading the legal representatives of the 4th respondent. C.M. Application No.1280/09 and I.A.Nos.2804/09 and 2805/09 are dismissed. C.M. Appln. No.914 of 2006 & F.A.O.No.208 of 2006 :: 5 :: We also find that the petition for condoning the delay in filing the appeal (C.M. Application No.914 of 2006) is also not entertainable. Dismissing the delay petition, we reject the appeal. Sd/- (P.R.RAMAN) JUDGE Sd/- (S.S.SATHEESACHANDRAN) JUDGE SK/- //true copy//