K.P. AHAMMED KUNJI Vs. SHEELA PRADEEPAN

JUDGEMENT

(1.) The appellant is the plaintiff in O.S. No. 461 of 2013 on the files of the Subordinate Court, Ernakulam. The suit along with counter-claim was scheduled for trial including in the special list on 23/5/2017. The appellant was absent on that day and hence the Court dismissed the suit for default and passed an ex parte decree in the counter-claim. The appellant filed Interlocutory Application No. 3862 of 2017 for restoring the suit on file and Interlocutory Application No. 3861 of 2017 to condone the delay of 51 days. Both the applications were dismissed as per a common order dtd. 7/11/2017. This appeal has been preferred, challenging the said order.

(2.) The suit was instituted for a decree directing the respondents by way of a mandatory injunction to convey the proportionate undivided share in the plaint schedule property in terms of an agreement executed between the parties on 15/3/2006. The appellant constructed an apartment complex in the property as per the said agreement and following the dispute arose with respect to the sale of proportionate share in the land where the construction was effected, the suit was filed. The suit was originally filed against one Sri. Pradeepan. He died and his legal representatives were impleaded, who are respondents 1 to 4 herein. The respondents 5 and 6 are subsequent purchasers. The respondents filed written statements disputing the appellant's right to get the conveyance deed executed. They also filed counter-claim for realisation of compensation on account of the delay caused in completing the construction.

(3.) The appellant would contend that he, being an aged man having ailments, was unable to attend the court on 23/5/2017. He suffered a stroke and was undergoing follow up treatment. The learned counsel appearing for the appellant therefore contended that for the delay as well as non appearance on 23/5/2017, there was sufficient cause.