IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 8^TH DAY OF APRIL 2022 / 18TH CHAITHRA, 1944 OP(C) NO. 654 OF 2022 AGAINST THE JUDGMENT DATED 20.01.2022 IN CMA.NO.14/2021 IN I.A.NO.2/2021 IN OS 526/2021 OF PRINCIPAL MUNSIFF COURT, NEYYATTINKARA PETITIONERS/APPELLANTS/PLAINTIFFS: 1 BABY GIRIJA @ GIRIJA S. NAIR AGED 69 YEARS D/O SARASAMMA, SREESADANAM, POOVANGAVILAKOM, PATHAMKALLU, THALAYAL DESOM, ATHIYANNOOR VILLAGE, ARALUMMOODU P.O., NEYYATTINKARA TALUK, THIRUVANANTHAPURAM,, PIN –

695123.

2 S. SREEKANDAN NAIR, AGED 71 YEARS SREESADANAM, POOVANGAVILAKOM, PATHAMKALLU, THALAYAL DESOM, ATHIYANNOOR VILLAGE, ARALUMMOODU P.O., NEYYATTINKARA TALUK, THIRUVANANTHAPURAM,PIN –

695123.

BY ADV G.S.REGHUNATH RESPONDENTS/RESPONDENTS/DEFENDANTS:

1 K. JAYARAM NAIR, AGED 50 YEARS SON OF LATE K.M. KRISHNAN NAIR, RESIDING AT KRISHNA BHAVAN, ATHIYANNOOR, ARALUMMOODU P.O., ATHIYANNOOR VILLAGE, NEYYATTINKARA TALUK, PIN 695123, PIN – 695123.

2 BIJU AGED ABOUT 50 YEARS SANDHYA BHAVAN, VIZHINJAM HARBOUR ROAD, MUKKOLA, MULLOOR P.O., THIRUVANANTHAPURAM TALUK, PIN – 695521.

THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05.04.2022, THE COURT ON 08.04.2022 DELIVERED THE FOLLOWING:

A. BADHARUDEEN, J.

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O.P(C). No.654 of 2022 ================================

Dated this the 8^th day of April, 2022

J U D G M E N T

This is an Original Petition filed under Article 227 of the Constitution of India by the plaintiffs in O.S.No.526/2021 on the file of the Munsiff Court, Neyyattinkara. Respondents herein are the defendants in the Suit.

2. Heard the learned counsel for the petitioners on admission, since the petitioners impugn the concurrent finding entered into by the trial court as well as the appellate court.

3. The learned counsel for the petitioners argued that the appellate court had not given opportunity to the plaintiffs to argue this case on merits and the appellate court dismissed the appeal without hearing the appellants, since this Court directed the appellate court to dispose of the same. In this connection, the learned counsel heavily relied on an affidavit filed by the learned counsel appearing for the appellants. Copy of the same is Ext.P9. On perusal of Ext.P9, it could be noticed that one Vadakara V.V.N.Menon filed this affidavit on 20.01.2022. It is true that O.P(C).No.2450/2021 was filed by the respondents/defendants pertaining to the above appeal and the specific contention in the said Original Petition in para.8 regarding the stage of the appeal was as under:

“8. It may kindly be noted that, said C.M.Appeal was heard in detail after receipt of the Lower Court Records and the same was posted for orders also. Now the same has been adjourned to 14.02.2022 again for Lower Court Records, objection and heareing by the 1^st Appellate Court; which is not justifiable. It is pertinent to note that unless the property of the 1^st petitioner is disposed off immediately, his daughter's marriage will be in jeopardy; as the 1^st petitioner is badly in need of funds for conducting the marriage. The respondents have instituted this C.M.Appeal only to harass and vex the petitioners herein and if the said Appeal is heard; there is every likelihood that the petitioners herein will succeed in the said Appeal. Therefore; an expeditious disposal of the said C.M.Appeal No.14 of 2021 is highly essential; otherwise serious prejudice will be caused to the petitioners.”

Thus going by the contentions raised in para.8 of O.P(C).No.2450/2021, it is crystal clear that the appeal was heard in detail after receiving lower court records and the same was posted for orders. But no judgment pronounced on the date posted for the same. In view of the said allegations raised, a report was called for from the learned Sub Judge while considering O.P(C).No.2450/2021, who dealt with C.M.A.No.14/2021. As per letter dated 22.12.2021, the learned Sub Judge reported as under:

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Both sides were heard on 01.12.2021 and adjourned the c