IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 8TH JANUARY 2008 / 18TH POUSHA 1929 CRP.No. 1920 of 2002() ---------------------- ORDER ON I.A.NOS.305/2001 AND 304/2001 IN ORIGINAL SUIT NO.294/94 OF SUBORDINATE JUDGE, MANJERI .................... REVN. PETITIONER: PETITIONERS IN I.A. & DEFENDANTS IN THE SUIT -------------------------------------------------------------- 1. KARIMBANAKKAL KOYAMU, S/O. KUTTIRAYIN, KARIMBANAKKAL HOUSE, PANDALLUR AMSOM, KADAMBODE DESOM, KADAMBODE P.O. 2. PARATHODI AYISHA, W/O.KOYAMU, DO. DO. DO BY ADV. SRI.M.A.ABDUL HAKHIM RESPONDENTS: RESPONDENT IN I.A.& PLAINTIFF IN THE SUIT. ------------------------------------------------------- KARUVATH KADEEJA, D/O. MOIDEEN KUTTY, NILAMBUR AMSOM DESOM, NILAMBUR P.O., NILAMBUR TALUK. BY ADV. SRI.K.M.SATHYANATHA MENON THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08/01/2008, ALONG WITH CRP NO.2457 OF 2002, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRP1920/2002 ORDER ON CMP NO.4675/2002 IN CRP NO.1920/2002 DISMISSED 8.1.2008 SD/- HARUN-UL-RASHID, JUDGE /TRUE COPY/ P.A. TO JUDGE HARUN-UL-RASHID, J. ------------------------------------------- C.R.P.NO.1920 OF 2002 & C.R.P.NO.2457 OF 2002 ------------------------------------------- Dated this the 8th day of January, 2008 ORDER The defendants in O.S.No.294/94 are the petitioners herein. The petitioners filed I.A.No.304/2001 to condone the delay in filing the I.A.No.305/01 for about 5 years and 5 months. I.A.No.305/01 was filed under Order 9 Rule 13 CPC to set aside the exparte decree passed by the trial court against the petitioners on 29.7.1995. In support of the applications, the second petitioner was examined as PW1. It is the case of the petitioners that they came to know about the suit only when they obtained notice in E.P.No.56/00 on 6.2.2001. According to them, the suit was filed by showing incorrect address and only when they received notice in the E.P., they came to know about the filing of the suit. They have also testified that since 1987 they are residing in Kadampode Desom, Panthallur Amsom and their address is wrongly shown as Vilayil amsom in the suit. PW1 has also testified that both the stations are situated at a distance of CRP NOS.1920/2002 & 2457/2002 2 50 kms. These applications were opposed by the plaintiffs in the suit. According to the plaintiffs, the averments in the applications are not correct, that the defendants were evading service of summons and hence summons was served by affixture. Besides, affixture, the notice was published in the newspaper and therefore prayed for dismissal of both these applications. The court below after appreciating the evidence on record held that it is to be believed that the petitioners were residing at Vilayil amsom even at the time of filing of the suit and as contended by the respondents they were evading summons and that they might have shifted their residence subsequently. It is also held that the revision petitioners/defendants failed to substantiate the actual date when they shifted their residence to Panthallur. For the reasons stated above, the trial court dismissed the application for setting aside the ex-parte decree. 2. The revision petitioners contended before this Court that the evidence tendered by the second petitioner was not properly appreciated by the court below and therefore a finding adverse to them has been recorded. The evidence tendered by the second petitioner, PW1, shows that there was no occasion for CRP NOS.1920/2002 & 2457/2002 3 the petitioners to receive notice in the suit. According to them, after their shifting to Panthallur amsom since 1987, the notice issued in the original address cannot be termed as service of notice. It is also brought to this Court's notice that in the first execution petition also, notice was not served on the revision petitioners. 3. In the interest of justice, I am of the view that an opportunity shall be given to the revision petitioners to contest the case on merits. Accordingly, I.A.Nos.304 of 2001 and 305 of 2001 are allowed on condition that the petitioners shall pay Rs.5,000/- towards cost of the respondent in the revision petitions. The cost shall be paid within a period of four weeks from today. Since the suit is of the year 1994, the trial court shall dispose of the matter within a period of four months from the date of receipt of a copy of this judgment. The counsel for the plaintiff submitted that the only property belonging to the defendants is attempted to be transferred in order to defeat the decree passed against them. If there is any grievance for the plaintiff regarding the conduct of the defendants in inducting strangers or encumbering the property or attempt to alienate, it CRP NOS.1920/2002 & 2457/2002 4 is for the plaintiff to place the grievance before the trial court and in that case appropriate orders shall be passed by the trial court. These civil revision petitions are disposed of accordingly. HARUN-UL-RASHID, Judge csl