IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 21ST NOVEMBER 2011 / 30TH KARTHIKA 1933 CRP.No. 113 of 2011() -------------------------------- CMA.NO.37/2010 of SUB COURT, PAYYANNUR OS.NO.120/2004 of MUNSIFF COURT, TALIPARAMBA .................... REVN. PETITIONER(S): ----------------------------------- 1. MUNDA YESODA, D/O.RAGHAVAN, AGED 63 YEARS, ANTHOOR AMSOM, THALAVIL DESOM, PARASSINIKKADAVU P.O., KANNUR DISTRICT. 2. MUNDA CHERIYA KUNHAMBU, S/O.RAGHAVAN, AGED 60 YEARS, ANTHOOR AMSOM, THALAVIL DESOM, PARASSINIKKADAVU P.O., KANNUR DISTRICT. 3. MUNDA BALAN, S/O.RAGHAVAN, AGED 58 YEARS, ANTHOOR AMSOM, THALAVIL DESOM, PARASSINIKKADAVU P.O., KANNUR DISTRICT. 4. MUNDA KARTHYAYANI, W/O.SUKUMARAN, AGED 53 YEARS, ANTHOOR AMSOM, THALAVIL DESOM, PARASSINIKKADAVU P.O., KANNUR DISTRICT. 5. MUNDA SANTHA, D/O.HARIDASAN, AGED 26 YEARS, ANTHOOR AMSOM, THALAVIL DESOM, PARASSINIKKADAVU P.O., KANNUR DISTRICT. 6. POLA LEELA, D/O.CHANDRAN, AGED 45 YEARS, ANTHOOR AMSOM, THALAVIL DESOM, PARASSINIKKADAVU P.O., KANNUR DISTRICT. 7. POLA LIJESH, S/O.CHANDRAN, AGED 21 YEARS, ANTHOOR AMSOM, THALAVIL DESOM, PARASSINIKKADAVU P.O., KANNUR DISTRICT. 8. POLA LIJINA, D/O.CHANDRAN, AGED 19 YEARS, ANTHOOR AMSOM, THALAVIL DESOM, PARASSINIKKADAVU P.O., KANNUR DISTRICT. BY ADV. SRI.V.A.SATHEESH SRI.V.T.MADHAVANUNNI sts 2/- -2- CRP.NO.113/2011 RESPONDENT(S): --------------------------- 1. CHIRAYIL KARTHYAYANI, W/O.BHARATHAN, AGED 58 YEARS, ANTHOOR AMSOM, THALAVIL DESOM, PARASSINIKKADAVU P.O., KANNUR DISTRICT. 2. MUNDA CHANDRAN, S/O.RAGHAVAN (DIED), ANTHOOR AMSOM, THALAVIL DESOM, PARASSINIKKADAVU P.O., KANNUR DISTRICT. 3. MULA KOYAD HARIDASAN, S/O.NARAYANI, AGED 57 YEARS, ANTHOOR AMSOM, THALAVIL DESOM, PARASSINIKKADAVU P.O., KANNUR DISTRICT. 4. SANITHA, D/O.HARIDASAN, AGED 26 YEARS, ANTHOOR AMSOM, THALAVIL DESOM, PARASSINIKKADAVU P.O., KANNUR DISTRICT. 5. MUNDA SHAIJU, S/O.BHARATHAN, AGED 29 YEARS, ANTHOOR AMSOM, THALAVIL DESOM, PARASSINIKKADAVU P.O., KANNUR DISTRICT. 6. MUNDA SHAIJA, D/O.BHARATHAN, AGED 27 YEARS, ANTHOOR AMSOM, THALAVIL DESOM, PARASSINIKKADAVU P.O., KANNUR DISTRICT. 7. MUNDA SAJITH, S/O.BHARATHAN, AGED 27 YEARS, ANTHOOR AMSOM, THALAVIL DESOM, PARASSINIKKADAVU P.O., KANNUR DISTRICT. R1 BYADV. SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH SMT.R.LEELA THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts THOMAS P.JOSEPH, J. ==================================== C.R.P. No.113 of 2011 ==================================== Dated this the 21st day of November, 2011 O R D E R Petitioners filed O.S. No.120 of 2004 in the court of learned Munsiff, Taliparamba for a declaration that plaint B schedule is part of plaint A schedule, injunction to restrain the first defendant and others from constructing house in plaint B schedule and for a mandatory injunction to remove that part of construction they have already effected in plaint B schedule. First defendant appeared and filed written statement while other defendants remained absent. During pendency of suit first defendant died and his wife and children - respondents 1 and 5 to 7 were impleaded as additional defendants 4 to 7. An Ex parte decree was passed in favour of petitioners on 17.07.2008. They filed E.P. No.40 of 2009 in which respondents 1 and 5 to 7 appeared on 21.05.2009 and filed counter on 24.08.2009. While so in the year, 2010, 1st respondent-4th defendant filed I.A. No.248 of 2010 to set aside the ex parte decree and I.A. No.247 of 2010 to condone the delay of 502 days in filing the said application. Those applications were dismissed by the learned Munsiff. The 1st C.R.P. No.113 of 2011 -: 2 :- respondent challenged that order before the learned Sub Judge, Payyannur in C.M.A. No.37 of 2010. That appeal was allowed on condition of payment of cost of Rs.5120/- on or before 03.1.2011. That judgment is under challenge. 2. It is contended by learned counsel that according to the 1st respondent-4th defendant ex parte decree was passed on 17.08.2008 but respondents 1 and 5 to 7 had entered appearance in E.A. 40 of 2009 on 21.05.2009 and filed their counter on 24.08.2009. Hence the plea that first respondent learned about the ex parte decree only on 10.11.2010 cannot be accepted. In that view of the matter learned Sub Judge was not right in allowing C.M.A. No.37 of 2008. 3. Learned counsel for first respondent contended that during pendency of the suit, first defendant died and thereon respondents 1 and 5 to 7 were impleaded as additional defendants 4 to 7 but defendants 2 and others remained ex parte in the proceeding as they were not interested in the suit. According to the learned counsel after the death of first defendant, the first respondent had undergone cataract surgery C.R.P. No.113 of 2011 -: 3 :- on both eyes on 02.04.2009 and there happened to be delay in requesting the court to set aside the ex parte decree. 4. True that trial court disallowed the application to set aside the ex parte and condone the delay. But the Appellate court having regard to the facts and circumstances found that the applications could be allowed on cost of Rs.5120/-. It is seen that learned Sub Judge has also taken into account the fact that the suit is for declaration of title and there are rival claims made by the parties which is required to be decided by the court. It is also pointed out that respondents 1 and 5 to 7 have filed O.S. No.113 of 2002 against petitioners for a decree for prohibitory injunction. 5. Since going by the relief in O.S. No.120 of 2004 it involved declaration of title and mandatory injunction for removal of the structure constructed by the first respondent in plaint B schedule, I am inclined to think that appellate court was right in giving the first respondent and other defendants opportunity to contest the case. I do not find reason to interfere with the discretionary jurisdiction exercised by the learned Sub Judge. C.R.P. No.113 of 2011 -: 4 :- Civil Revision is dismissed. Learned Munsiff is directed to dispose of O.S. No.120 of 2004 as early as possible considering the fact that it is a suit of the year 2004. All pending Interlocutory Applications will stand dismissed. THOMAS P. JOSEPH, JUDGE. vsv