IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 30TH SEPTEMBER 2010 / 8TH ASWINA 1932 OP(C).No. 108 of 2010(O) ------------------------ AGAINST THE ORDER DATED 11/11/2008 IN IA.1926,1927/2008 IN OS.308/2006 of MUNSIFF COURT, CHANGANACHERRY .................... PETITIONERS: ------------------------------- 1. VIJAYAN KENKAYIL HOUSE, PUZHAVATHU CHENGANACHERRY. 2. VIJAYAMMA, W/O.VIJAYAN KENKAYIL HOUSE, PUZHAVATHU CHENGANACHERRY. BY ADV. SRI.ALEX.M.SCARIA RESPONDENTS: --------------- 1. N.S.S.KARAYOGAM NO.4357, PUZHAVATHU CHENGANACHERRY REPRESENTED BY THE PRESIDENT S.MAHENDRAN, PULIMOOTTIL HOUSE, PUZHAVATHU CHENGANACHERRY. 2. LAKSHMI KENKAYIL HOUSE, PUZHAVATHU CHENGANACHERRY. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 30/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.108 of 2010 --------------------------------------- Dated this 30th day of September, 2010 JUDGMENT This revision is in challenge of Ext.P2, judgment of learned District Judge, Kottayam in C.M.A.No.89 of 2008 confirming the order passed by learned Munsiff, Changanacherry on I.A.Nos.1926 and 1927 of 2009 in O.S.No.308 of 2006. That is a suit filed by respondent No.1 for eviction of petitioners and respondent No.2/defendant No.3 from the suit property. Respondent No.1 claimed that as per a sale deed and Will property belonged to him and that after the death of Rugmini Amma to whom the property originally belonged and under whom respondent No.1 claimed title, petitioners and respondent No.2 trespassed into the property and stayed there. Petitioners and respondent No.2 were served with summons in the suit. An ex parte decree was passed on 25-02-2008. Petitioners filed I.A.Nos.1927 of 2008 to set aside the ex parte decree and 1926 of 2008 to condone the delay of 205 days. It was contended in the said applications that petitioner No.1, aged about 70 years was laid up due to various illness, petitioner No.2 was working out side Kerala and respondent No.2 was abroad during the relevant O.P(C).No.108 of 2010 : 2 : time, they had entrusted the case to their counsel but they could not enquire about the matter further and there happened to be an ex parte decree. On getting notice on the execution petition they approached the court with the above said applications. The applications were objected by respondent No.1. Learned Munsiff dismissed the applications finding that no sufficient cause was made out to set aside the ex parte decree. That was confirmed by the learned District Judge by Ext.P2, judgment which is under challenge in this petition. Learned counsel for petitioners contend that learned District Judge was carried away by the claims of respondent No.1 on the merit of the case and has not properly adverted to the circumstances pleaded by petitioners under which the ex parte decree happened to be passed. Learned counsel asserted that it is in the circumstances stated in the affidavit in support of I.A.Nos.1926 and 1927 of 2008 that ex parte decree was passed. It is also contended by learned counsel that the Will on which respondent No.1 has placed reliance has not even been proved as provided under Section 63 of the Succession Act and Section 68 of the Indian Evidence Act. Learned counsel has also a contention based on Ext.P12 produced in this petition that petitioners are entitled to the O.P(C).No.108 of 2010 : 3 : protection of Section 53A of the Transfer of Properties Act. 2. This being a petition challenging dismissal of the applications to set aside the ex parte decree and condone the delay, what is required to be considered is only whether there was sufficient cause for absence of petitioners and respondent No.2 in the trial court when the case was taken up for hearing on 25-02-2008. In order to ascertain whether the applications have bonafides, it is possible to refer to the facts of the case also but only to that limited extent. Ext.P12, letter produced by petitioners in this original petition (which was not produced in the courts below) even if accepted would not show any handing over possession of the property to the petitioners pursuant to any agreement for sale so that petitioners could contend that they have a defence under Section 53A of the Transfer of Properties Act. But, I am not going into that question in detail since that is not a matter to be decided by me. Point for consideration is whether there was sufficient cause for absence of petitioners and respondent No.2 in court when the case was taken up for hearing on 25-02-2008. It is not disputed that petitioners and respondent No.2 were served with summons and even according to them, they had entrusted the case to their counsel but the reason stated O.P(C).No.108 of 2010 : 4 : is that first petitioner is aged about 70 years, laid up due to various illness and was not able to contact the counsel and petitioner No.2 was working outside Kerala while respondent No.1 was abroad. Petitioners gave evidence as PWs.1 and 2 and it came out that version of petitioners that they had no occasion to contact the counsel and enquire about the case was incorrect. Evidence revealed that the court building is situated at a distance of 5 minutes walk from the residence of petitioners and that even as per the version of petitioner No.1 as PW1, she used to go to the hospital along the front side of court building on several occasions (after the summons was served on he), so far as petitioner No.2 is concerned, he stated that during 2008 he was very much available at his place of residence (at a distance of 5 minutes walk from the court building) and that during the relevant time he was engaged in repair work of a house just in front of the court building. There is no case that office of the counsel was far away so that petitioners could not contact him. It is not as if petitioners had no occasion or facility to contact the counsel and ascertain the stage of the case. It is also difficult to think that after the case was entrusted to the counsel, petitioners did not turn up for quite long time and learned about the decree O.P(C).No.108 of 2010 : 5 : only on notice of execution petition being served on them. Courts below were not impressed by the reason stated by petitioners and found that no sufficient cause was made out, I do not find reason to interfere under Article 227 of the Constitution as if any illegality has been committed by the courts below or there is illegal exercise or refusal to exercise of jurisdiction in the proper manner. Resultantly without prejudice to the right of petitioners to challenge the ex parte decree in appeal if they are otherwise entitled to that course, this petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-