IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 25TH JULY 2011 / 3RD SRAVANA 1933 CRP.No. 339 of 2011() ------------------- CMA.48/2008 OF I ADDL. DISTRICT COURT, THRISSUR OS.656/2000 OF MUNSIFF COURT, WADAKKANCHERY .................... REVISION PETITIONER / APPELLANT : --------------------------------------------------------- KUTTAN, S/O.GOPALAN, KARIKUZHI KIZHAKKEPURAKKAL @ KIZHAKKITTIL HOUSE, MULLURKARA VILLAGE, DESOM, THALAPPILLY TALUK, THRISSUR. BY ADV. SRI.T.RAJASEKHARAN NAIR RESPONDENT / RESPONDENT : --------------------------------------------- 1. SUJATHA, D/O.GOPALAN, KARIKUZHI KIZHAKKEPURAKKAL @ KIZHAKKITTIL HOUSE, MULLURKARA VILLAGE, DESOM, THALAPPILLY TALUK, THRISSUR-680 583. 2. SIVANARAYANAN, S/O.GOPALAN, DO. DO. PRESENT ADDRESS: D.NO.N/32, 5TH CROSS, SWATHATHRA NAGAR, SREERAMAPURAM, BANGALORE-21. 3. K.G.VISWANATHAN, S/O.GOPALAN, KARIKUZHI KIZHAKKEPURAKKAL @ KIZHAKKITTIL HOUSE, MULLURKARA VILLAGE, DESOM, THALAPPILLY TALUK, THRISSUR-680 583. 4. K.G.MURALEEDHARAN, S/O.GOPALAN, DO. DO. 5. K.G.SREENIVASAN, S/O.GOPALAN, 154/2 MRS QUARTERS, IND COLONY, KANJURMARY, MUMBAI-400 0 6. JYOTHY, D/O.LATE RAMACHANDRAN, KARIKUZHI KIZHAKKEPURAKKAL @ KIZHAKKITTIL HOUSE, MULLURKARA VILLAGE, DESOM, TALAPPILLY TALUK, THRISSUR-680 583. ...2/- CRP.No. 339 of 2011() -2- 7. JEEMON, S/O.LATE RAMACHANDRAN, DO. DO. 8. JINCHU, S/O.LATE RAMACHANDRAN, DO. DO. 9. SREEDHARAN, H/O.MALLOTY, MARAKKATH HOUSE, PUDUTHUTHY P.O., THALAPPILLY TALUK-680 001. 10. THILAKAN, S/O.SREEDHARAN, DO. DO. 11. MALLIKA, D/O.SREEDHARAN, DO. DO. 12. SHOBANA ARUN, D/O.LATE SUMATHY, POOVTHUMPARAMBIL HOUSE, KUNDANNOOR P.O., WADAKKANCHERY (VIA), TALAPILLY TALUK - 680 590. 13. SUSMITHA, D/O.LATE SUMATHY, DO. DO. 14. SUJITHA, D/O.LATE SUMATHY, DO. DO. BY ADV. SRI.P.G.SURESH FOR CAVEATOR THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn THOMAS P JOSEPH, J. ---------------------------------------- C.R.P.No.339 of 2011 --------------------------------------- Dated this 25th day of July, 2011 ORDER Petitioner is the first defendant in O.S.No.656 of 2000 of the Court of learned Munsiff, Vadakancherry. That is a suit for partition filed by the first respondent. Petitioner filed I.A.Nos.1153 and 1154 of 2006 to set aside the ex parte preliminary decree and to condone the delay of three years and six days. Those applications were dismissed by the learned Munsiff which learned First Additional District Judge, Thrissur has confirmed in C.M.A.No.48 of 2008. Hence this civil revision. It is contended by learned counsel that there was sufficient cause for the petitioner not to contest the preliminary decree and that was not taken into account by the courts below. 2. It is stated that petitioner was employed at Maharashtra during the time the suit was instituted. Ex parte decree was passed on 24.05.2003. Thereafter, petitioner retired from service and came to his native place. It is also seen that fourth defendant filed appeal against the preliminary decree as A.S.No.268 of 2005 and in that appeal petitioner had entered appearance through counsel. The appeal was dismissed. C.R.P.No.339 of 2011 -: 2 :- Following that, respondent filed I.A.No.1370 of 2010 for passing final decree. Petitioner remained ex parte in that proceeding (in spite of the fact that he had entered appearance in A.S.No.268 of 2005 filed by the fourth defendant against preliminary decree). Later, ex parte order in the final decree proceeding was set aside as per order dated 16.02.2005 on I.A.No.1370 of 2003. It is three years and six days after passing of the preliminary decree that petitioner has chosen to file I.A.Nos.1153 and 1154 of 2006. The applications were opposed by the first respondent/plaintiff and courts below found that there was no sufficient explanation for delay in filing the applications and that there was no sufficient cause for the petitioner to remain ex parte in the preliminary decree proceeding. Learned counsel contended that having regard to the circumstances petitioner ought to have been given opportunity to contest the suit. 3. There is no case that petitioner was not served in the suit. The only contention is that petitioner was employed at Maharashtra during the relevant time. Assuming so, he has appeared in A.S.No.268 of 2005 filed by the fourth defendant and then atleast he should have taken steps to challenge the preliminary decree and instead, with him on the party array C.R.P.No.339 of 2011 -: 3 :- preliminary decree was confirmed and I.A.No.1370 of 2003 for passing final decree was allowed. The ex parte order in the final decree proceeding was set aside on 16.02.2005. Still it is only in the year 2006 that the present applications are filed. Petitioner was served in the suit itself and he remained absent. I do not find reason to reopen the preliminary decree filed in a suit of the year 2000. This civil revision is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-