IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 16TH FEBRUARY 2010 / 27TH MAGHA 1931 RFA.No. 299 of 2009() --------------------- OS.314/2006 of II ADDL.SUB COURT,ERNAKULAM ......................................... APPELLANTS --------------- 1. JANAKI,W/O.CHOTHI, AGED 72 YEARS RESIDING AT THENKENCHERI THUNDI PADIVATTOM EDAPPALLI, KOCHI 24. 2. SANTHA,D/O. CHOTHI, AGED 52 YEARS W/O.APPU, RESIDING AT THENKENCHERITHUNDI PADIVATTOM EDAPPALLI, KOCHI 24. 3. PRAKASAN, S/O CHOTHI AGED 37, RESIDING AT THENKENCHERITHUNDI PADIVATTOM, EDAPPALLI, KOCHI 24. BY ADV. SRI.JOSEPH FRANKLIN RESPONDENT: --------------- T.C.THANKAMANI, D/O.CHOTHI AGED 57 YEARS, RESIDING AT NIKARTHUTHUNI HOUSE CHALIKAVATTOM,VENNALA. ADV. SRI.K.R.VINOD FOR R THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 16/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------------ R.F.A. No.299 OF 2009 ------------------------------ Dated this, the 16th day of February, 2010 J U D G M E N T ~~~~~~~~~~~ Pius C. Kuriakose, J. This appeal is directed against the preliminary decree passed in a partition suit. Mr. Joseph Franklin, the learned counsel for the appellants, submitted that though the impugned preliminary judgment purports to be passed on merit, as a matter of fact, the judgment is not result of any adjudication in which the appellant participated. He therefore, requested that the judgment be set aside and the suit be remanded to the court below, so that, the appellant can participate in the trial. 2. Sri.K.R.Vinod, learned counsel for the respondent/plaintiff would agree that it is in the absence of the appellants that the impugned judgment and decree were passed. He did not raise any serious objection in the matter of the suit being remanded. He only wanted us to ensure that delaying tactics are no longer adopted by the appellant. R.F.A.No.299/2009 - 2 - 3. Having regard to the above submission, we are of the view that the appellant can be given an opportunity to contest the suit imposing certain terms. 4. The result is that the preliminary judgment and decree under appeal are set aside. Suit O.S.No.314/2006 is remanded back to the II Addl. Subordinate Judges Court, Ernakulam. That court is directed to relist the suit for trial, after the parties enter appearance before that court. Try the suit on a day today basis and pass fresh judgment and decree. The parties will enter appearance before the II Additional Subordinate Judges Court Ernakulam on 10.3.2010. 5. This judgment will become operative, only if, the appellant pays a sum of Rs. 1500/- to the High Court Legal Services Committee within ten days from today and produce receipt before the court below. Since we have noticed laches on the part of the appellant, we are not inclined to refund the court fee remitted by the appellant on the appeal memorandum. (PIUS C. KURIAKOSE, JUDGE) (C.K.ABDUL REHIM, JUDGE) ps