IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 17TH DECEMBER 2010 / 26TH AGRAHAYANA 1932 OP(C).No. 806 of 2010(O) ------------------------ I.A.NO.3303/2010 IN OS.290/2008 of MUNSIFF COURT, KOTTARAKKARA .................... PETITIONER (S): -------------------------- VALSALA @ KOMALAM, D/O.RAVEENDRAN, KOMALA VILASAM VEEDU, MELILA KIZHAKKEKARA MURI, MELILA VILLAGE, KOTTARAKKARA, KOLLAM DISTRICT. BY ADVS. SRI.B.MOHANLAL, SRI.SAIJU S., SRI.C.SINOY. RESPONDENT(S): --------------------------- 1. RAJAMMA, D/O.RAVEENDRAN, PARAKULATHUKIZHAKKATHIL VEEDU, MELIL KIZHAKKEKARA MURI, MELILA P.O., MELILA VILLAGE, KOTTARAKKARA TALUK, KOLLAM, PIN-691 508. 2. SABU, S/O.RAVEENDRAN, ASWATHY BHAVAN, MELILA PADINJATTINKARA MURI, MELILA VILLAGE, P.O.KOTTARAKKARA, KOLLAM, PIN-691 508. 3. SURENDRAN, S/O.RAVEENDRAN, VISHNULAL BHAVAN, MELILA KIZHAKKEKARA, MELILA VILLAGE, P.O. KOTTARAKKARA, KOLLAM, PIN-691 508. 4. VIJAYAN, S/O.RAVEENDRAN, PARAKULATHU VEEDU, MELILA KIZHAKKEKARA MURI, MELILA VILLAGE, P.O.KOTTARAKKARA, KOLLAM, PIN-691508. 5. SUBHASH, S/O.RAVEENDRAN, HARISH BHAVAN, MELILA KIZHAKKEKARA MURI, MELILA VILLAGE, P.O., KOTTARAKKARA, KOLLAM, PIN-691508. Kss ..2/- ..2... OP(C) NO.806/2010 6. SULOCHANA, D/O.RAJAMMA, PARAKULATHU THEKKATHIL VEEDU, MELILA KIZHAKKEKARA MURI, MELILA VILLAGE, P.O.KOTTARAKKARA, KOLLAM, PIN-691 508. 7. USHA, D/O.RAJAMMA, UDIYANNOOR PUTHEN VEEDU, INCHAKKADU THEKKU MURI, MYLOM VILLAGE, KOTTARAKKARA P.O., KOLLAM, PIN-691 506. 8. MANI, D/O.RAJAMMA, AVIYOTTU PUTHEN VEEDU, GANDIGRAM, CHAKKUVARAKKAL MURI, CHAKKUVARAKKAL VILLAGE, KOTTARAKKARA TALUK P.O., KOLLAM PIN-691 506. 9. KANAKA, D/O.RAJAMMA, KUZHIVILA VEEDU, MANJALLOOR MURI, PATHANAPURAM VILLAGE P.O., PATHANAPURAM TALUK, KOLLAM, PIN-689 695. 10. RADHA, D/O.RAJAMMA, PARAKULATHU VEEDU, MELILA KIZHAKKEKARA MURI, MELILA VILLAGE P.O., KOTTARAKKARA TALUK, KOLLAM, PIN-691 508. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 17/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OP(C) NO.806/2010 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S.NO.29/2008 OF THE MUSIFF COURT, KOTTARAKKARA. P2: COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENTS 1 TO10. P3: COPY OF THE DECREE IN O.S.NO.290/2008 OF THE MUNSIFF COURT, KOTTARAKKARA DTD. 07/08/2009. P4: COPY OF THE PROOF AFFIDAVIT FILED BY THE PETITIONER. P5: COPY OF THE JUDGMENT IN O.S.NO.290/2008 OF THE MUNSIFF COURT, KOTTARAKKARA. P6: COPY OF THE REVIEW PETITION I.A.NO.3303/2010 IN O.S.NO.290/2008 OF THE MUNSIFF COURT, KOTTARAKKARA. P7: COPY OF THE ORDER IN I.A.NO.3303/2010 IN O.S.NO.290/2008 OF THE HON'BLE MUNSIFF COURT, KOTTARAKKARA DTD. 25/10/2010. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss THOMAS P.JOSEPH, J. ==================================== O.P(C) No.806 of 2010 ==================================== Dated this the 17th day of December, 2010 J U D G M E N T Notice of this proceeding has been served on the counsel for respondents in the court below and the learned counsel for petitioner has filed a memo to that effect. That amounts to sufficient service of notice under Rule 59 of the Rules of the High Court of Kerala. Hence service of notice on respondents is declared as sufficient. 2. Plaintiff in O.S. No.290 of 2008 of the court of learned Munsiff, Kottarakkara is the petitioner before me. She sued respondents for a declaration of her 2/12 right in the property, partition and other reliefs. There was an ex parte judgment and decree in favour of petitioner which was later set aside and case was listed for trial on 24.06.2010. Petitioner filed Ext.P4, proof affidavit and marked Exts.A1 and A2. It is submitted that petitioner was not subjected to cross-examination and that learned Munsiff wrongly recorded that there was no oral evidence and posted the case on 26.06.2010 after hearing both sides. Thereafter case was posted for re-hearing on several dates and judgment was O.P(C) No.806 of 2010 -: 2 :- pronounced on 18.09.2010 dismissing the suit finding that title claimed by petitioner is not proved by oral or documentary evidence. Thereon petitioner filed Ext.P6, application for review of Ext.P5, judgment. It is submitted that application was not posted for hearing but was dismissed by Ext.P7, order stating that the application is not filed within time. Exhibit P7, order dismissing Ext.P6, application is under challenge. Learned counsel submitted that Ext.P6 was not posted for hearing and that in fact there was no delay in filing the application. Petitioner applied for copy of judgment on 24.09.2010, got it on 06.10.2010 and filed the application for review on 20.10.2010. Learned counsel contends that petitioner was entitled to get 30 days from 20.10.2010, less the time taken for applying for certified copy of the judgment dated 18.09.2010 (18.09.2010 till 24.09.2010). It is without noticing the above fact that learned Munsiff dismissed the application. 3. It is seen from Ext.P7, order that learned Munsiff has not adverted to the above aspects. Petitioner has also a grievance that Ext.P6, application was not posted for hearing. Assuming that there was delay in filing the application, petitioner could have been given an opportunity to file application to condone the delay. In that view of the matter I am inclined to set aside Ext.P7, order. Resultantly this petition is allowed. Exhibit P7, order is set O.P(C) No.806 of 2010 -: 3 :- aside. Exhibit P6, I.A. No.3303 of 2010 in O.S. No.290 of 2008 of the court of learned Munsiff, Kottarakkara is remitted to that court for fresh decision after giving petitioner opportunity to address arguments on the question of limitation and whether judgment is liable to be reviewed as prayed for. I make it clear that in case Ext.P6, application is preferred beyond the prescribed time it will be open to the petitioner to move for condonation of delay as provided under law. Petitioner shall appear in the court below on 05.01.2011. THOMAS P. JOSEPH, JUDGE. vsv