IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 15TH SEPTEMBER 2009 / 24TH BHADRA 1931 FAO.No. 281 of 2006() --------------------- AGAINST THE ORDER DATED 01/06/2006 IN IA. 3908 & 3909/05 IN OS.636/1996 of II ADDL.SUB COURT,THRISSUR .................... APPELLANT/4TH DEFENDANT: -------------------------------------------- MAJEEDH, S/O.KOLANGARAPARAMBIL KHADER, ALAPPATTU VILLAGE-DESOM, THRISSUR TALUK. BY ADV. SRI.D.ANIL KUMAR RESPONDENT(S): PLAINTIFF, DEFENDANTS 1 TO 3: -------------------------------------------- 1. BALAN, S/O.KANJURUVEETTIL VELU, PORATHUR DESOM, ALAPPATTU VILLAGE, THRISSUR TALUK. 2. KARTHYAYANI, W/O.LATE NAMBYOTH KUNJAKKAN, KODANNUR VILLAGE-DESOM, THRISSUR TALUK.(DIED) 3. SHAJI, S/O.NABYOTH KARTHYAYANI, KODANNUR VILLAGE-DESOM, THRISSUR TALUK. 4. RASHEED (MUHAMMED), S/O.KOLANGARAPARAMBIL KHADER, ALAPPATTU VILLAGE-DESOM, THRISSUR TALUK. 3RD RESPONDENT IS RECORDED AS THE LEGAL REPRESENTATIVE OF THE DECEASED 2ND RESPONDENT AS PER ORDER DT.24.8.09 IN MEMO VIDE OF 7692/06. ADV. SRI.DILIP J. AKKARA FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 15/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O.No. 281 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of September, 2009 JUDGMENT Joseph, J. The appellant is the 4th defendant in the suit filed for partition. In this appeal he challenges the common order passed in I.A.Nos. 3908 and 3909 of 2005 in O.S.No. 636 of 1996. The applications were filed for condoning the delay under Section 5 of the Limitation Act and to set aside the ex parte decree passed. The court below dismissed the applications. Hence this appeal. 2. Heard the learned counsel for the appellant and the learned counsel for the first respondent/plaintiff. 3. There is a delay of 1438 days. The suit was decreed on 7.8.2001. It is stated in the order that the 4th defendant filed I.A.No.3550 of 2001 for setting aside the ex F.A.O.No. 281 of 2006 2 parte decree and judgment and that petition was dismissed on 7.6.2002. Against the same the appellant filed C.M.A.No. 630 of 2002, which was also dismissed. It is further stated that the appellant has suppressed all these facts in the affidavit filed along with the applications. It is further stated that the appellant has to explain the reasons for condoning the delay and he has not shown sufficient cause to condone the delay of each day. Therefore the applications were dismissed. 4. The learned counsel for the appellant stated that the appellant was away. The appellant purchased the property from respondents 2 and 3 in the year 1996, i.e. prior to the suit. He submits that even on merits the appellant has a good case. He would also point out more importantly that the finding of the court below that the appellant had filed an application, I.A. 3550 of 2001 and further C.M.A. 630 of 2002 is not correct. He would also submit that he was not made a party to the proceedings. 5. There appears to have some merit in the said contention. If that be so, we find that there is no suppression of facts, as F.A.O.No. 281 of 2006 3 stated by the court below. We think that we should take a view, which would advance the cause of substantial justice. The appellant should be given an opportunity to contest the case on merits. However, the order cannot be an unconditional order. 6. In such circumstances this appeal is allowed. The I.A.s filed by the appellant will stand allowed on condition that the appellant will pay as cost a sum of Rs.5,000/- to the counsel for the first respondent appearing in this court and produce a memo to that effect within a period of one month from today. If the appellant does not pay the cost, it is made clear that the appeal will stand dismissed. (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm F.A.O.No. 281 of 2006 4 The appellant has paid Rs.5,000/- (Rupees five thousand only) towards cost to the counsel for the first respondent in compliance of the directions contained in the judgment dated 15.9.2009 in FAO No.281/2006 vide memo c.f. 6330/09 dated 29.9.2009. Registrar (Judicial)