IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 20TH AUGUST 2008 / 29TH SRAVANA 1930 FAO.No. 24 of 2008() -------------------- OS.106/1992 of SUB COURT, PAYYANNUR .................... APPELLANTS/PETITIONERS/DEFENDANTS 8, 9 & 10 -------------------------------------------- 1. PAZHAYAPURAYIL KAKKADAVATH SOUDHABI, AGED 30, D/O.KUNJAMINA, PARIYARAM PANCHAYATH, VAYAD AMSOM, THIRUVATTOOR DESOM, KANNUR DISTRICT. 2. PAZHAYAPURAYIL KAKKADAVATH MUHAMMED MADHANI, AGED 28, S/O.KUNJAMINA PARIYARAM PANCHAYATH, VAYAD AMSOM, THIRUVATTOOR DESOM, KANNUR DISTRICT. 3. PAZHAYAPURAYIL KAKKADAVATH ABDUL SATHAR, AGED 26, S/O.KUNJAMINA, PARIYARAM PANCHAYATH, VAYAD AMSOM, THIRUVATTOOR DESOM, KANNUR DISTRICT. BY ADV. SRI.O.V.MANIPRASAD RESPONDENTS: RESPONDENTS/PLAINTIFF & DEFENDANTS 1 TO 7 ------------------------------------------------------ 1. PANDIKASSALAYIL NABEESUMMA, D/O.ASSANKUNHI HAJI, KUTTIYERI P.O. TALIPARAMBA TALUK, KANNUR DISTRICT PIN:670 141 (*) (DIED) 2. PANDIKASALAYIL AYESUMMA, D/O.MUHAMMED, PARIYARAM PANCHAYATH, KUTTIYERI P.O., VAYAD AMSOM, THIRUVATTOOR DESOM, KANNUR DISTRICT. 3. ABDULLA, S/O.MUHAMMED, PARIYARAM PANCHAYATH, KUTTIYERI P.O., VAYAD AMSOM, THIRUVATTOOR DESOM, KANNUR DISTRICT. 4. PATHUMMA, D/O.MUHAMMED, PARIYARAM PANCHAYATH, KUTTIYERI P.O., VAYAD AMSOM, THIRUVATTOOR DESOM, KANNUR DISTRICT. PIN:670 141 FAO.No. 24 of 2008() 5. KAKKADAVATH PAZHAYAPURAYIL JAMEELA, D/O.PAZHAYAPURAYIL KAKKADAVATH KUNJAMINA, PARIYARAM PANCHAYATH, VAYAD AMSOM, KUTTIYERI P.O. THIRUVATTOOR DESOM, KANNUR DISTRICT PIN: 670 141. 6. SEENATH, D/O.PAZHAYAPURAYIL KAKKADAVATH KUNJAMINA, PARIYARAM PANCHAYATH, VAYAD AMSOM, KUTTIYERI P.O THIRUVATTOOR DESOM, KANNUR DISTRICT PIN: 670 141. 7. ABDUL RASHEED, S/O.PAZHAYAPURAYIL KAKKADAVATH KUNJAMINA, PARIYARAM PANCHAYATH, VAYAD AMSOM, KUTTIYERI P.O. THIRUVATTOOR DESOM, KANNUR DISTRICT PIN: 670 141. 8. MOTTANAKATHU AAYSHA, 2ND W/O.LATE ABDULKAREEM, PARIYARAM PANCHAYATH, KUTTIYERI P.O., VAYAD AMSOM, THIRUVATTOOR DESOM, KANNUR DISTRICT PIN 670 141. 9. ASALEEMA, D/O.LATE ABDULKAREEM, PARIYARAM PANCHAYATH, KUTTIYERI P.O. VAYAD AMSOM, THIRUVATTOOR DESOM, KANNUR DISTRICT. PIN: 670 141. 10. MUNEERA, S/O.LATE ABDULKAREEM, PARIYARAM PANCHAYATH, KUTTIYERI P.O. VAYAD AMSOM, THIRUVATTOOR DESOM, KANNUR DISTRICT PIN:670 141. 11. SAMEER, S/O.LATE ABDULKAREEM, PARIYARAM PANCHAYATH, KUTTIYERI P.O., VAYAD AMSOM, THIRUVATTOOR DESOM, KANNUR DISTRICT PIN.670 141. 12. SUBAIDA, D/O.LATE ABDUL KAREEM, PARIYARAM PANCHAYATH, KUTTIYERI P.O., VAYAD AMSOM, THIRUVATTOOR DESOM, KANNUR DISTRICT PIN: 670 141. [(*) IT IS RECORDED THAT SECOND RESPONDENT DIED AND THE APPELLANTS AND RESPONDENTS 1 AND 3 TO 7 ARE HER LEGAL HEIRS VIDE ORDER DATED 26/03/2008 VIDE MEMO DATED 24/03/2008.] BY ADV. SRI.B.PREMNATH (E) FOR R.1, R3,4,8 TO12 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 19/08/2008,THE COURT ON 20/08/2008 PASSED THE FOLLOWING: F.A.O.No. 24 of 2008() ORDER ON I.A.NO.405/2008 IN F.A.O.NO.24/2008 CLOSED. SD/-P.R.RAMAN, JUDGE SD/-T.R.RAMACHANDRAN NAIR, JUDGE 20/08/2008 \\TRUE COPY// P.A to Judge P.R.RAMAN & T.R.RAMACHANDRAN NAIR, JJ. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ F.A.O. No.24 of 2008 ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Dated this the 20th day of August, 2008 J U D G M E N T J U D G M E N T RAMAN, J. This is an appeal against an order dismissing an application, I.A.No.1170/2006 filed under Order IX Rule 13 of the Code of Civil Procedure in O.S.No.106/1992, after dismissing I.A.No.1169/2006, an application under Section 5 of the C.P.C for condoning delay in filing the above I.A. 2. O.S.No.106/1992 is a suit for partition. Appellants were minors at the time of institution of the suit, but represented by a guardian. Therefore, there was representation for the minors through guardian. Preliminary decree was passed in the matter. The guardian did not file any application to set aside the ex parte decree. 3. Incidentally, it was pointed out that the respondents that the appellants have participated in the final decree proceedings also. Final decree application pursuant to the preliminary decree was also filed in which Commissioner was appointed and there was contest. Pursuant to the objection filed by the petitioners the matter was sent back and thereafter, final decree was passed and delivery was also taken. It was thereafter that the appellants filed the above applications saying that they came to know about the preliminary F.A.O.No. 24 of 2008 -: 2 :- decree only on 16/10/2006. The court below did not accept the contention of the appellants that they came to know about the passing of the final decree only on 16/10/2006. But the court below did not accept this contention for reasons stated. The court below found that the averment of the appellants that they came to know about the decree only on 16/10/2006 did not instill confidence. Nothing is produced to show that the order passed by the court below is wrong, or to convince this Court that they came to know about the decree only on 16/10/2006. 4. The learned counsel for the appellants, however, placing reliance on a decision of the Supreme Court in Civil Appeal No.2029/2008 a photocopy of C.D.J law journal in Sujaben Manubhai Solanki and others v. Shivsangbhai Purangbhai Solanki and others in the course of the argument contended that normally, the courts always leans towards the decision of the matter between the parties on merits and thus the sufficient cause to receive liberal construction so as to advance substantial justice. It is the settled position that in the matter of condonation of delay court should take a lenient view rather than making any pedantic approach. 5. It is also true that the courts always lean towards the decision on merits. But in this case the appellants were minors at the time of filing the suit. They were represented by a guardian, mother. Apart from her own interest as a guardian, she had her own interest F.A.O.No. 24 of 2008 -: 3 :- in the matter to defend the case but she did not defend the case. It is not a case where the mother had a different interest from that of the minors or that she was interested only as a guardian of the minors. And it must be seen that the mother did not file any appeal to set aside the ex parte decree. In such circumstances and that too after the final decree passed, when an application of this nature is filed seeking condonation of delay, necessarily, sufficient materials should have been placed on record to show that the averments made in the application is bona fide made and that they came to know of the decree only on 16/10/2006. The court below having applied its mind and found that it is not satisfied and having exercised the discretion with plausible reason, we find no interference is possible. In view of the above facts and circumstances, we do not find any illegality in the order passed calling for any interference in this appeal. We find no merit in the appeal. It is accordingly dismissed. P.R.RAMAN, Judge T.R.RAMACHANDRAN NAIR, Judge ms