SANTHAKUMARI Vs. DEVAKI AMMA

JUDGEMENT

(1.) The appellant is the plaintiff in O.S.No.879 of 2009 on the file of the Court of the Third Additional Subordinate Judge of Kozhikode. The relief sought in the suit is to declare that a partition deed registered as document No.3423 of 1989 of Sub Registrar's Office, Chevayoor is not binding on the plaintiff and for partition of the plaint schedule property into 8 shares and allotment of one such share to the plaintiff. Upon receipt of summons, the defendants who are the mother and siblings of the plaintiff entered appearance and filed a written statement resisting the suit. Long after issues were framed, the suit stood listed for trial on 12.3.2012. Since the plaintiff did not appear, the trial court dismissed the suit for default. Several years later, to be exact, 4 years, 10 months and 17 days thereafter, the appellant plaintiff filed I.A.No.355 of 2017 accompanied by I.A.No.356 of 2017 to have the order dismissing the suit for default set aside after condoning the delay of 4 years, 9 months and 17 days in filing the former application.

(2.) The case set out in the affidavit filed in support of both the applications was that the first defendant (mother of the appellant) and the other defendants had offered to settle the undivided share which had devolved on the first defendant in the properties that belonged to late P.N.Ramanunni Nair, brother of the first defendant and therefore as the said suggestion was acceptable to her, she did not appear in the trial court on 12.3.2012, the date on which the suit stood listed for trial. The appellant has in the said affidavits further stated that though she was advised that an application will have to be filed within time to have the suit restored to file, in view of the fact that the settlement offered was acceptable to her and she was under the bonafide belief that the matter has been settled, she did not take timely steps to have the suit restored to file. She had further averred that her mother had promised to settle all disputes by 15.1.2017 and that on 15.1.2017 when she contacted her mother, she told her that as her siblings have expressed dissent, she is not in a position to honour the commitment earlier made. It is on these averments that the appellant prayed that after condoning the delay of 4 years, 9 months and 17 days in filing the application to set aside the order dismissing the suit for default, the order dismissing the suit for default may be set aside. The defendants jointly filed objections to both the applications. They contended that the case set out by the appellant is neither true nor tenable. They contended that the first defendant had not offered to settle on the plaintiff, her undivided share in the property of her brother late P.N.Ramanunni Nair.

(3.) The learned trial Judge considered the rival contentions and dismissed I.A.No.355 of 2017 by order passed on 12.4.2017 holding that the appellant has not shown sufficient cause to condone the delay of more than 4 years in filing the application to set aside the order dismissing the suit for default. Consequently, by a separate order passed on the same day, I.A.No.356 of 2017 was also dismissed. The appellant has, aggrieved thereby, filed this appeal.