IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 13TH DECEMBER 2011 / 22ND AGRAHAYANA 1933 CRP.No. 559 of 2011() --------------------------------- AGAINST THE ORDER DATED 04/11/2011 IN IA 2222/2009 IN OS.NO.163/2007 of MUNSIFF COURT, MAVELIKKARA .................... REVN. PETITIONER(S)/1ST COUNTER PETITIONER-1ST PLAINTIFF ----------------------------------------------------------------------------------------------- KESAVAN, KUTTIPARAMBIL THEKKETHIL, VETTIYAR VILLAGE. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SMT.NAVA VARGHESE SRI.MANU SEBASTIAN RESPONDENT(S)/ PETITIONER-DEFENDANT & LEGAL REPRESENTATIVES OF DECEASED 2ND PLAINTIFF --------------- 1. RAJAN, KUTTIPARAMBIL THEKKETHIL, VETTIYAR VILLAGE, VETTIYAR MURI.PIN-690 557. 2. VIJENDRAN, VINOD BHAVANAM, VETTIYAR MURI, VETTIYAR VILLAGE,PIN-690 557. 3. GIRIJA, W/O.LATE RAVEENDRAN, 7-4-60 AMBIKANIVAS, D-2, FIROZGUD, SECONDRABAD-11. 4. KIRAN AMBADI, S/O.LATE RAVEENDRAN, 7-4-60 AMBIKANIVAS, D-2, FIROZGUD, SECONDRABAD-11. 5. KARTHIK AROMAL,S/O.LATE RAVEENDRAN, 7-4-60 AMBIKANIVAS, D-2, FIROZGUD, SECONDRABAD-11. 6. SUJATHA, W/O.KAMALASANAN, KUDUMBISSERIL, CHERIYANADU VILLAGE, CHENGANNUR.PIN-689 511. BY THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13/12/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts THOMAS P.JOSEPH, J. ==================================== C.R.P. No.559 of 2011 ==================================== Dated this the 13th day of December, 2011 O R D E R Petitioner is the plaintiff in O.S. No.163 of 2007 of the court of learned Munsiff, Mavelikkara. An ex parte decree was passed against the defendant. He filed applications to set aside the ex parte decree and condone the delay of 656 days in filing the application. The delay was condoned by the impugned order which is under challenge. 2. Petitioner and others sued defendant to set aside a gift deed executed by them in favour of the defendant, their son and for a declaration of their right and possession over the property. At the time the suit was filed, defendant was in Gulf. It is stated that summons was issued to his address abroad but not returned. Publication was made in local vernacular daily. Petitioner claimed that he did not notice paper publication and it is only when he approached the Village Officer to remit revenue for the property on 16.11.2010 that the learned about the ex parte decree. Immediately he took steps to set aside the ex parte decree. Applications were opposed by the petitioner (second plaintiff died in the meantime) contending that defendant had C.R.P. No. 559 of 2011 -: 2 :- sufficient notice of the suit and there is no proper explanation for the delay. 3. Power of Attorney Holder and wife of the defendant gave evidence as P.W.1 while defendant himself was examined as P.W.2. Exhibits A1 to A8 were marked for the defendant. Petitioner gave evidence as C.P.W.1. Court below was satisfied that delay is properly explained and condoned the delay. 4. It is contended by learned counsel that defendant had returned to his native place even as on 14.8.2008 and thereafter and that summons sent to him in his address abroad was not returned and it must be presumed that the summons was served on him. It is also stated that publication was made in the vernacular daily. 5. It is seen from the order under challenge that though summons was issued to the defendant in the address shown in the paint it was returned with a report of the process server that defendant was not available and his whereabouts are not known (since he was employed abroad). Later, steps were taken to publish notice in Gulf in the Malayala Manorama and Mangalam dailies. But it is seen that publication was made in Mangalam daily. Court below found from Ext.A2, copy of Passport that C.R.P. No. 559 of 2011 -: 3 :- during the relevant time defendant was abroad. 6. Having regard to the circumstances and also considering the nature of litigation involved, learned Munsiff was inclined to condone the delay holding that sufficient cause is made out. 7. Since court below has found that there was reason to condone the delay and exercised the discretion to condone delay, question is whether this Court is required to interfere under Section 115 of the Code of Civil Procedure. It is not as if court below has travelled beyond its jurisdiction in passing the impugned order. I do not find any jurisdictional error or infirmity requiring interference by this Court. Civil Revision Petition is dismissed All pending Interlocutory Applications will stand dismissed. THOMAS P. JOSEPH, JUDGE. vsv