IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 22ND SEPTEMBER 2010 / 31ST BHADRA 1932 CRP.No. 482 of 2010() --------------------- CMA.70/2009 of DISTRICT COURT,TRIVANDRUM OS.1229/1999 of II ADDL.MUNSIFF COURT.,TRIVANDRUM (IA.10246/2003) .................... PETITIONER/APPELLANT/PETITIONER: --------------------- BHAMINI SIVARAJAN,W/O.LATE SIVARAJAN, MINI LAND HOUSE,T.R.A.E 122,S.N NAGAR, THURUVICKAL P.O,ULLOOR,THIRUVANANTHAPURAM. BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR RESPONDENT/RESPONDENT/COUNTER PETITIONER: --------------- SINDHU,W/O.SANTHOSHKUMAR,KARTHIKA NIVAS KUIKATTU LANE,MANUKULADITYA MANGALAM,NEMOM, THIRUVANANTHAPURAM,NOW RESIDING AT BINDU NIVAS CHARAVILA,PACHALLOOR P.O,THIRUVANANTHAPURAM DIST. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- C.R.P.No.482 of 2010 --------------------------------------- Dated this 22nd day of September, 2010 ORDER Defendant in O.S.No.1229 of 1999 of the court of learned Additional Munsiff-II, Thiruvananthapuram is the petitioner before me challenging the order passed by learned Munsiff on I.A.No.10246 of 2003 as confirmed by the learned District Judge in C.M.A.No.70 of 2009. Respondent filed a suit against petitioner and her husband for a decree for prohibitory injunction against trespass into the suit property. Petitioner and her husband resisted the suit. In the meantime, respondent got plaint amended to incorporate a prayer for fixation of boundary. Petitioner and her husband did not file additional written statement. Advocate Commissioner submitted report and plan identifying the suit property. The case was posted for trial in the list on 06-10-2003. Petitioner and her husband remained absent. There was also no representation for them. That resulted in an ex parte decree. Later, petitioner and her husband filed I.A.No.10246 of 2003 to set aside the ex parte decree. That application was dismissed for defect. That order was challenged in this court in W.P.C.No.5180 of 2007. This court ordered C.R.P.No.482 of 2010 : 2 : restoration of I.A.No.10246 of 2003 and directed trial court to consider whether petitioner and her husband had sufficient cause for their absence in the court on 06-10-2003. In the meantime, husband of petitioner died and petitioner as legal representative of her husband as well continued prosecuting I.A.No.10246 of 2003. She gave evidence as PW1 and proved Exts.A1 and A2. Learned Munsiff was not impressed by the reasons stated by petitioner for absence on 06-10-2003 and dismissed that application. Petitioner challenged that order before the learned District Judge in C.M.A.No.70 of 2009. Learned District Judge has found that normally parties should be given an opportunity to contest the case on merit but on the facts of this case such course is not warranted since petitioner was not able to show sufficient cause and since it came out that in the meantime the decree itself was executed and the boundary was fixed. Accordingly the appeal was dismissed. That judgment is under challenge. It is contended by learned counsel that in spite of showing sufficient cause, courts below erroneously dismissed I.A.No.10246 of 2003. Learned counsel submits that it would appear that petitioner has filed an application in the executing court for redelivery or such other reliefs as circumstances warranted. 2. Question is whether petitioner and her husband had sufficient cause for non appearance in court on 06-10-2003. No C.R.P.No.482 of 2010 : 3 : doubt, Exts.A1 and A2 are pressed into service. Though petitioner as PW1 had a case that her husband was undergoing an inpatient treatment in the hospital during the time the case came up for trial on 06-10-2003. Ext.A1 does not say about such inpatient treatment. Ext.A2 only say that the hospital authorities were not able to trace out any record for such inpatient treatment of husband of petitioner. As it is there is no evidence to prove alleged inpatient treatment of her husband during the relevant time. In Ext.A1 it is stated that husband of petitioner is a chronic diabetic patient and he came with abscess on the right thigh, incision and drainage were done and he was advised rest for 10 days. That certificate does not say that he was unable to move about. At any rate, petitioner as a party to the suit was available and she could be present in court on the relevant day. No information was given to the counsel appearing for petitioner and her husband about their alleged inability to appear in court on 06-10-2003. The plaint was amended as per order on I.A.No.5884 of 2002 and a prayer for fixation of boundary was incorporated but petitioner and her husband had not filed any additional written statement in answer to the amended plaint. There was also the report of Advocate Commissioner which was not challenged by petitioner and husband. It is in the light of above circumstances that learned Munsiff passed the decree C.R.P.No.482 of 2010 : 4 : though, it has to be described as ex parte since petitioner and her husband were not present in court. In execution of that decree, boundary has already been fixed. These circumstances were taken into account by the learned District Judge to refuse prayer of petitioner to reopen the case. Having gone through the materials placed before me and considering various circumstances which I have stated above, I do not find any jurisdictional error committed by the courts below in refusing to set aside the ex parte decree. Hence a request at this distant point of time after the decree has already been executed cannot be accepted. If petitioner has a contention that under the guise of decree any property belonging to her and not forming part of the decree schedule has been trespassed upon it is open to her to initiate appropriate proceedings and if any application has already been filed, to pursue that application untrammeled by any observation contained herein or in the impugned judgment or order. Revision petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-