KUNHATHUTTY Vs. MELEVEETTIL KUNHIKOYA AND ORS.

JUDGEMENT

(1.) Petitioner in OP No. 92/2013 on the file of the Family Court, Tirur is the appellant herein. The appellant filed OS No. 157/2002 before the Sub Court, Tirur for specific performance of a sale agreement executed by her husband, the 1st respondent herein. The case of the appellant was that her husband married the 2nd respondent and started residing with her. As part of the settlement between the 1st respondent and the appellant, the 1st respondent had entered into an agreement for sale on 04/07/2002 whereby the properties mentioned therein were to be conveyed to the appellant for a total consideration of Rs. 4 lakhs. Out of Rs. 4 lakhs, Rs. 3.5 lakhs was already paid to the 1st respondent. Though she was ready and willing to pay the balance amount and get the document executed, he was not prepared to execute the sale deed and he is trying to create sham documents in favour of respondents 3 and 4. So the appellant filed OS No. 157/2002 before the Sub Court, Tirur for a decree for specific performance of a sale agreement executed by her husband.

(2.) A written statement was filed by the 1st respondent denying the allegations and there was no pleading with regard to the limitation raised. The suit was instituted on 26/10/2002. During the pendency of the proceedings before the Sub Court, Tirur, the Family Court was established in Malappuram. So the appellant filed IA No. 619/11 under Order 7 Rule 10A of the Code of Civil Procedure to return the plaint for presentation before the Family Court, Malappuram. After hearing both sides, the learned Sub Judge passed an order directing return of the plaint to be presented before the Family Court, Malappuram on or before 15/03/2011 with a direction to the parties to appear before the Family Court, Malappuram on 25/03/2011. It was on that basis the plaint was presented before the Family Court, Malappuram on 14/03/2011 and it was taken on file as OP No. 287/2011. Thereafter when the Family Court, Tirur was formed, this petition was transferred to the Family Court, Tirur and renumbered as OP No. 92/2013. In that Court the 1st respondent raised a contention that the suit is barred by limitation as the return of plaint ought to have been re-presented before the Family Court, Malappuram on the next day of the return of the suit by the Sub Court and there was a delay of 16 days in re-presenting the suit before the Family Court, Malappuram. It is also contended that the Sub Court has no jurisdiction to extend the period for presentation of plaint before proper Court. Relying on the decision reported in Videocon International Ltd. v. Logos Traders, 2007 3 KerLJ 577 the Family Court came to the conclusion that the plaint presented was out of time and as such it is barred by limitation and dismissed the suit. Aggrieved by the same, the present appeal has been preferred by the appellant/petitioner.

(3.) Heard learned counsel for the appellant and respondents.