IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 28TH MARCH 2008 / 8TH CHAITHRA 1930 WP(C).No. 10703 of 2008(Y) -------------------------- CMA.36/2003 of SUB COURT, TIRUR OS.235/1998 of MUNSIFF COURT, TIRUR .................... PETITIONER: APPELLANT/1ST DEFENDANT: ------------------------------------ BEEVIKUTTY, D/O.UTHUMAN, PUTHIYAKATH HOUSE, PACHATTIRI AMSOM AND DESOM, P.O.TIRUR, MALAPPURAM DISTRICT. BY ADV. SRIC.M.MOHAMMED IQUABAL RESPONDENTS: RESPONDENTS/PLAINTIFF & OTHERS DEFENDANTS: ------------------------------------------------------- 1. PATHUMMA, D/O.UTHUMAN, PUTHIYAKATH HOUSE P.O.TIRUR, MALAPPURAM DISTRICT. 2. KUNJAYISHA, D/O.UTHUMAN, PUTHIYAKATH HOUSE, PACHATTIRI AMSOM AND DESOM, P.O.TIRUR, MALAPPURAM DISTRICT. 3. AMINU, D/O.UTHUMAN, PUTHIYAKATH HOUSE, PACHATTIRI AMSOM AND DESOM, P.O.TIRUR, MALAPPURAM DISTRICT. 4. FATHIMA, PUTHIYAKATH HOUSE, PACHATTIRI AMSOM AND DESOM, P.O.TIRUR, ,MALAPPURAM DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 10703 OF 2008 --------------------- Dated this the 28th day of March, 2008 JUDGMENT This writ petition is preferred against the order of the Subordinate Judge, Tirur, in IA 385/08 in CMA 36/03. CMA 36/03 is filed against the order of the Munsiff, Tirur, whereby the petition to set aside the ex parte decree and the petition to condone the delay in filing the ex parte decree was dismissed by the court. 2. It is averred that respondent No.4 in the petition has no right over the property partitioned by ex parte decree and it can be proved by summoning the marriage register of the period 1965 maintained at Paravanna Valiya Juma-ath Mosque. In support of the contention learned counsel had relied on the decision of this court in Pokku v. Ammini [1987 (2) KLT 308] whereby the court has taken the view that in appropriate matters the court can consider other materials as well, especially when a person is not able to prove the sufficient cause. At any rate, the court cannot go into the contention whether such person is having right or not in an application to set aside the ex parte decree. The court has only to consider about the WPC NO 10703/08 2 sufficient reason for condoning the delay as well as for setting aside the ex parte decree. In all cases it cannot uniformly be held that the court has to take into consideration the merits of the case of the petitioner for the purpose of setting aside the ex parte decree. 3. Therefore, I am not inclined to allow the application for summoning the document. Secondly, it is a matter where the document is sought to be summoned under Order XLI Rule 27 of the CPC. It has been held by the court that production of document under Order XLI Rule 27 at the stage of appeal is an exception to the general rule and unless one is satisfied that there are warranting circumstances or reasons, which prevented the party from calling for the documents at an early state, it shall not be allowed. On that ground also this document cannot be summoned in the CMA. Therefore I decline to interfere with the decision rendered by the learned Subordinate Judge. The writ petition lacks merit and it is accordingly dismissed. M.N.KRISHNAN, JUDGE vps WPC NO 10703/08 3 WPC NO 10703/08 4 WPC NO 10703/08 5