IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 9TH JULY 2010 / 18TH ASHADHA 1932 WP(C).NO. 21246 OF 2010(O) ------------------------------------------- AGAINST THE ORDER IN IA.2560/05,IA.2420/06 IN OS.182/2000 OF ADDL.SUB COURT,PARAVUR .................... PETITIONER(S): ----------------------- TRESA JOB, W/O.JOB VARGHESE THATTACHERRY A-1, SEENA BHAVAN, VATTATHIPADAM EAST ROAD, PALARIVATTOM P.O., COCHIN-682 025. BY ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE SRI.S.SUJIN SMT.NITA.N.S. RESPONDENT(S): --------------------------- 1. FRANCIS C.MUNDADAN, S/O.LATE M.L.CYRIAC, POPULAR PACKAGING, LINET VILLA, CHAMPANOOR, ANGAMALY SOUTH, ERNAKULAM DISTRICT. 2. ACHAMMA CYRIAC, W/O.LATE M.L.CYRIAC, III-C, JOSHA DALE (NEAR Y.M.C.A.) PALARIVATTOM P.O., COCHIN-682 025. 3. JOHN C.MUNDADAN, S/O.LATE M.L.CYRIAC, MUNDADAN HOUSE, KOTHAKULANGARA SOUTH VILLAGE ALUVA TALUK, ERNAKULAM DISTRICT. 4. MARY SOJAN KIZHAKEKUTTU, C/O.SHYAM SOJAN, H.NO.CC.38/72O PAVOOR HOUSE, PAVOOR ROAD, PADIVATTOM, EDAPPALLY P.O., COCHIN-682 024. 5. ELIZABETH ALPHONSE MEENATTOOR W/O.LATE ALPHONSE MEENATTOOR PALACHUVAD ROAD, PLADAMUGHAL JUNCTION, KAKKANAD P.O., COCHIN-682 025. 6. ANNIE ADOLF PLAMOOD, III-B, JOSH DALE (NEAR Y.M.C.A.) PALARIVATTOM P.O., COCHIN-682 025. 7. JOSE C.MUNDADAN, S/O.LATE M.L.CYRIAC, C.C.NO.46/1030A, CHITTOOR ROAD, VADUTHALA P.O., COCHIN-682 023. 8. JACOB C.MUNDADAN, S/O.LATE M.L.CYRIAC, HOUSE NO.XIII/757-A, MUNDADAN HOUSE, THOPPIL JUNCTION, THRIKKAKARA P.O., COCHIN-682 021. 9. ROSAMMA THOMAS VATTEKAT D/O.LATE M.L.CYRIAC, III-C, JOSH DALE (NEAR Y.M.C.A.) PALARIVATTOM P.O., COCHIN-682 025. 10. PIUS C.MUNDADAN, S/O.LATE M.L.CYRIAC HOUSE NO.XVII/522, CHURCH NAGAR, MUNDADAN HOUSE, ANGAMALY P.O., ERNAKUALM DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) No.21246 of 2010 ==================================== Dated this the 9th day of July, 2010 J U D G M E N T Plaintiff in O.S.No.182 of 2000 of the court of learned Additional Sub Judge, North Paravur is the petitioner before me. He sued respondents for partition and on respondent Nos.1 and 10-defendant Nos.8 and 10 remaining ex parte, Ext.P2, preliminary judgment and decree was passed on 20.03.2003. After lapse of a few years respondent Nos.1 and 10 filed Exts.P3 and P8, applications respectively, to set aside the preliminary decree claiming that they were not served with summons in the case. They also claimed that there was no service by affixture and it appeared that petitioner colluding with the process server created some problems. Respondent Nos.1 and 10 claimed that they did not get information about the case from paper publication effected by petitioner. Applications were opposed by petitioner on various grounds including that respondent Nos.1 and 10 had knowledge about pendency of the case and at any rate applications are barred by limitation. Learned Sub Judge after C.W.P(C) No.21246 of 2010 -: 2 :- referring to records held that there was no service of summons on respondent Nos.1 and 10. Court below also held that though according to the petitioner share to which respondent Nos.1 and 10 are entitled is only minimal, they should be heard in the suit. Accordingly preliminary decree was set aide. That is under challenge in this Writ Petition. Learned counsel for petitioner contended that respondent Nos.1 and 10 had sufficient notice of pendency of the case and at any rate respondent No.1 was served even on I.A. No.2420 of 2006 filed by respondent No.10. Still he did not file appropriate application on time. Further contention is that applications are disposed of in a causal manner without even referring to the inordinate delay involved. 2. In a case where an ex parte decree is sought to be set aside on the ground that there was no service of summons period of limitation shall begin to run from the date of knowledge. According to respondent Nos.1 and 10 they were not served with any summons and got information about preliminary decree only recently. 3. It is not disputed that there was no service of summons on respondent Nos.1 and 10. Even according to the petitioner since there was no personal service, substituted C.W.P(C) No.21246 of 2010 -: 3 :- service by affixture and paper application in a local daily were made. Learned Sub Judge has stated that publication was made in Chandrika daily which is not having proper circulation in the area to which respondent Nos.1 and 10 belonged and that the said daily is not generally read by the class to which respondent Nos.1 and 10 belonged. Respondent Nos.1 and 10 denied that there was any service by affixture. Petitioner did not take steps to prove the fact of service by affixture. It is in that circumstance that ex parte decree was set aside. Mere delay in filing the applications is not a ground to interfere with the discretion exercised by the learned Sub Judge so far as it is not shown to be illegal or perverse. In the circumstances no interference is called with the impugned order. Learned Sub Judge is directed to dispose of the suit at the earliest taking into account the fact that suit is of the year 2000. Writ Petition is dismissed with the above direction. THOMAS P. JOSEPH, JUDGE. vsv