IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 8TH FEBRUARY 2010 / 19TH MAGHA 1931 CRP.No. 585 of 2009() --------------------- CMA.27/2004 of ADDL.DISTRICT COURT (ADHOC)-II, MANJERI OS.175/1996 of MUNSIFF COURT, MANJERI .................... REVN. PETITIONER(S): IST RESPONDENT/IST RESPONDENT -------------------------------------------------- MOHAN GEORGE, AGED 51 YEARS, S/O.THAMARAVELIL GEORGE, EDAKKARA VILLAGE, NILAMBUR TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.M.M.ABDUL AZIZ, SENIOR ADVOCATE SRI.M.A.ABDUL HAKHIM RESPONDENT(S): PETITIONER & R2/PETITIONER & R2 ---------------------------------------------- 1. POTHUKALLU GRAMAPANCHAYAT, REPRESENTED BY ITS SECRETARY, POTHUKALLU, NILAMBUR TALUK, MALAPPURAM DISTRICT. 2. EDAKKARA GRAMAPANCHAYAT, REPRESENTED BY ITS SECRETARY, EDAKKARA, NILAMBUR TALUK, MALAPPURAM DISTRICT. ADV. SRI.K.M.SATHYANATHA MENON THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * C.R.P. No. 585 of 2009 * * * * * * * * * * * * * * * * * * Dated: 8th day of February, 2010 ORDER The plaintiff in O.S. No. 175 of 1996 on the file of the Munsiff Court, Manjeri is the revision petitioner. The said suit as originally laid was one for a perpetual injunction restraining the first defendant Edakkara Grama Panchayath from trespassing upon the plaint B schedule property admeasuring 75 cents alleged to be part of plaint A schedule admeasuring 1.50 acres. On the allegation that part of the property had fallen within the limits of the Pothukallu Panchayath due to bifurcation of area the said Panchayath was impleaded as the 2nd defendant in the suit. Subsequently, the suit was amended into one for recovery of possession of 32.5 cents of land and the plaint B schedule was amended accordingly. On 17-12-2001 the suit was decreed for recovery of possession of 32.5 cents of land. The decree was an ex parte decree against the Pothukallu Panchayath. The plaintiff, thereafter filed E.P. 111/2002 for delivery and on 4-2-2003 delivery was effected through Court. Thereafter, the 2nd defendant Panchayat filed I,.A. No. 2052 of 2003 under Order 9 Rule.13 C.R.P. No. 585 of 2009 -:2:- C.P.C. seeking to set aside the ex parte decree. The Panchayath also filed I.A. 2051 of 2003 to condone the delay of 1 year 8 months and 15 days in filing I.A. No. 1052 of 2003 . The Secretary and Vice President of the Panchayat were examined as PWs 1 and 2 in support of the petition to condone the delay. Ext.X1 receipt dated 17-8-2003 was produced to show that there was delay on the part of the first defendant Panchayath in handing over the documents to the 2nd defendant Panchayath. As per common order dated 1-7-2004 , the trial court dismissed the petition to condone the delay and also dismissed I.A. No. 2052 of 2003 on merits. Aggrieved by the said common order, the 2nd defendant Panchayath filed C.M.A. No. 27 of 2004 before the Addl. District Court ( Adhoc - II) , Manjeri . As per judgment dated 23-1-2009 impugned in this Revision, the lower appellate court has allowed the appeal and has set aside the ex parte decree by putting the 2nd defendant on terms by directing the Panchayath to pay Rs. 2500/- by way of cost to the plaintiff . It is the said judgment which is assailed in this Writ Petition filed by the plaintiff. 2. The learned counsel appearing for the revision petitioner assailed the judgment of the lower appellate court on the following grounds:- C.R.P. No. 585 of 2009 -:3:- Both the courts have found that the 2nd defendant was guilty of laches. As against the finding of the trial Court that Ext.X1 was a concocted document prepared on a Sunday, the lower appellate court has not recorded any finding. A decree validly obtained by the plaintiff as early as on 17-12-2001 has been set aside lightly by the lower appellate court. The plaintiff/decree holder has obtained delivery through court on 4-2-2003. It was thereafter that the 2nd defendant sought the ex parte decree to be set aside. 3. It is true that both the courts have held that the 2nd defendant was guilty of laches in approaching the court for setting aside the decree. But there is no finding to the effect that the 2nd defendant Panchayath has been guilty of gross laches disentitling it to have a contest in the matter. That is why the lower appellate court has put the Panchayath on terms. Since the plaintiff/decree holder has obtained delivery of the property the same is not interfered with by the impugned judgment. If only the 2nd defendant eventually succeeds in its contest can it result in interfering with the possession of the plaintiff. The mere fact that the 2nd defendant was impleaded on the premise that a portion of the suit property has come to vest within the limits of the 2nd defendant Panchayath consequent on the bifurcation, itself shows that the plaintiff was prepared to concede that the 2nd defendant is also a necessary party to the suit. By setting aside the ex parte decree the lower appellate court has only given an opportunity to C.R.P. No. 585 of 2009 -:4:- the 2nd defendant to contest the suit on merits. in the matter of delay, in view of the decision of the Apex court in Collector, Land Acquisition, Anantnag and a nother v. Mst. Katiji and Others - AIR 1987 SC 1353, it cannot be said that the discretion exercised by the lower appellate court has not been property exercised. I do not find any error or law or error jurisdiction in the judgment of the lower appellate Court warranting interference by this Court. Status quo as on today shall be maintained by both the parties till the final disposal of the suit and the same shall be subject to the final result of the suit. Sd/-V. RAMKUMAR, (JUDGE) /true copy/ P.S. to Judge ani.