IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 27TH OCTOBER 2011 / 5TH KARTHIKA 1933 OP(C).No. 3465 of 2011(O) ----------------------------------- AGAINST THE ORDER DATED 04/06/2010 IN IA.1872/2010 IN OS.410/2010 of PRINCIPAL MUNSIFF,ALAPPUZHA ................................................................... (S): PETITIONER ----------------------- SARASWATHI AMMA, W/O. LATE PRABHAKARAN PILLAI, PRASANTH HOUSE, NEERATTUPURAM P.O., THALAVADY VILLAGE, KUTTANAD TALUK, ALAPPUZHA DISTRICT. BY ADV. SRI.R.RAMADAS SRI.T.SIVADASAN RESPONDENT(S): ------------------------ 1. P.SATHEESAN, S/O. LATE PRABHAKARAN PILLAI, PRASANTH HOUSE, NEERATTUPURAM P.O., KUTTANAD TALUK, THALAVADY VILLAGE, ALAPPUZHA DISTRICT-689 571. 2. SOBHA, D/O. LATE PRABHAKARAN PILLAI, PRASANTH HOUSE, NEERATTUPURAM P.O., KUTTANAD TALUK, THALAVADY VILLAGE, ALAPPUZHA DISTRICT-689 571. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 27/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: STU OP(C).No. 3465 of 2011(O) APPENDIX PETITIONER(S) EXHIBITS : EXT.P1 : A TRUE COPY OF THE TAX RECEIPT DTD.24.5.2010 ISSUED BY THE VILLAGE OFFICER, THALAVADY FOR PAYMENT OF THE TAX UPTO 2010- 2011 IN RESPECT OF THE PLAINT SCHEDULE PROPERTY BY THE PETITIONER – 1ST DEFENDANT. EXT.P2 : A TRUE COPY OF THE AGREEMENT OF SALE DTD.27.5.2010 EXECUTED BY THE PETITIONER IN FAVOUR OF THE SAID BALAKRISHNAN NAIR. EXT.P3 : A TRUE COPY OF THE PLAINT IN OS NO.410/2010 ON THE FILE OF THE MUNSIFF'S COURT, ALAPPUZHA DATED JUNE, 2010. EXT.P4 : A TRUE COPY OF THE SAID ORDER DTD.4.6.2010 IN IA NO.1872/2010 IN OS NO.410/2010, PASSED BY THE HON'BLE MUNSIFF'S COURT, ALAPPUZHA. EXT.P5 : A TRUE COPY OF THE COUNTER AFFIDAVIT DTD.9.6.2010 FILED BY THE PETITIONER-1ST DEFENDANT IN IA NO.1872/2010 IN OS NO.410/ 2010, MUNSIFF'S COURT, ALAPPUZHA. RESPONDENTS' EXHIBITS : NIL //TRUE COPY// STU P.A. TO JUDGE. THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.3465 of 2011 --------------------------------------- Dated this 27th day of October, 2011 JUDGMENT Petitioner is the first defendant in O.S.No.410 of 2010 of the Court of learned Munsiff, Alappuzha. That is a suit filed by the first respondent seeking partition and separate possession of 1/3 share he has claimed in the suit property. 2. Petitioner is the second wife of Prabhakaran Pillai, father of respondents 1 and 2 (born to Prabhakaran Pillai in his first wife). According to the petitioner, Prabhakaran Pillai had, during his life time given shares to respondents 1 and 2 and the rest of the property was bequeathed to the petitioner as per a registered Will dated 20.08.1998. Prabhakaran Pillai expired on 05.01.2006. Petitioner has entered into Ext.P2, agreement for sale of the property with one Balakrishnan Nair. Respondents, with intent to block that sale has caused the first respondent to file the suit as aforesaid seeking partition. 3. Learned counsel submits that purposefully to delay trial of the suit, first respondent has given a wrong address of the second respondent/second defendant. It is also submitted that though petitioner has given the correct address of second O.P(C).No.3465 of 2011 -: 2 :- respondent six months back, summons has not been issued to the second respondent in that address. Learned counsel has highlighted the inconvenience and difficulties being suffered by the petitioner, an issueless widow on account of her inability to comply with the commitment she has made as per Ext.P2, agreement. It is argued that attempt of respondents 1 and 2 is to harass and coerce petitioner, for the said purpose they have filed the suit and it is being prolonged. In the circumstance, an early disposal of the appeal is requested. 4. Certainly, grievance of petitioner requires consideration. But, having regard to the pendency of the case before learned Munsiff and since the preliminary steps are not over I do not intend to issue any direction to the learned Munsiff for time bound disposal but learned Munsiff has to consider the grievance of petitioner (I am not going into the truth or otherwise of that). If the summons issued to the second respondent/second defendant is being returned unserved as that address is not correct, necessarily summons has to be issued to the second respondent in the proper address. On failure of service of summons the Court has to take recourse to other provisions in Order V of the Code of Civil Procedure to ensure service. In case O.P(C).No.3465 of 2011 -: 3 :- petitioner has supplied the correct address of the second respondent, learned Munsiff shall attempt to serve summons to the second respondent on that address as well. Petitioner is permitted to request the learned Munsiff to expedite trial and disposal of the suit. If any such request is made learned Munsiff shall consider that request and pass appropriate order as provided under law. This original petition is disposed of as above. Sd/- (THOMAS P. JOSEPH, JUDGE) Sbna/-