IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 25TH NOVEMBER 2010 / 4TH AGRAHAYANA 1932 CRP.NO. 516 OF 2008() --------------------------------- CMA.NOS.36 & 37 /2003 OF SUB COURT, TIRUR .................... REVN. PETITIONER(S): 1 ----------------------------------- BEEVIKUTTY, D/O UTHUMAN, PUTHIYAKATH HOUSE, PACHATTIRI AMSOM AND DESOM, P.O. TIRUR, MALAPPURAM DISTRICT (DIED). ADDITIONAL PETITIONER IMPLEADED: ------------------------------------------------------ P.K.V. SAIDALAVI @ BAVAKUTTY, S/O. MOIDEENKUTTY HAJI, PUTHIYAKATH HOUSE, PACHATTIRI AMSOM DESOM, TIRUR MALAPPURAM DISTRICT IS IMPLEADED AS ADDITIONAL SECOND PETITIONER BEING THE LEGAL HEIR OF DECEASED PETITIONER AS PER ORDER DATED 30.10.2009 IN I.A. NO.3124 OF 2009. BY ADV. SRI.T.KRISHNANUNNI, SENIOR ADVOCATE SRI.C.M.MOHAMMED IQUABAL RESPONDENT(S): ------------------------ 1. PATHUMMA, D/O UTHUMAN, PUTHIYAKATH HOUSE, P.O. TIRUR, MALAPPURAM DISTRICT. 2. KUNJAYISHA, D/O UTHUMAN, PUTHIYAKATH HOUSE, PACHATTIRI AMSOM AND DESOM, P.O. TIRUR, MALAPPURAM DISTRICT. 3. AMINU, D/O UTHUMAN, PUTHIYAKATH HOUSE, PACHATTIRI AMSOM AND DESOM, P.O. TIRUR, MALAPPURAM DISTRICT. 4. FATHIMA, PUTHIYAKATH HOUSE, PACHATTIRI AMSOM AND DESOM, P.O. TIRUR, MALAPPURAM DISTRICT. ADV. SRI.K.RAMACHANDRAN FOR R4 SRI.S.SREEDEV FOR R4 SRI.VINOD RAVINDRANATH FOR R1,2 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== C.R.P. No.516 of 2008 ==================================== Dated this the 25th day of November, 2010 O R D E R Defendant No.1 in O.S. No.235 of 1998 of the court of learned Sub Judge, Tirur is the petitioner before me challenging refusal to set aside a preliminary decree for partition passed in the year 2000 in a suit filed in the year 1998. Ex parte decree passed in the year 2000 was sought to be set aside by petitioner by filing I.A. No.2044 of 2000 and I.A. No.2043 of 2000 to condone the delay in filing the application to set aside the ex parte decree. Those applications were dismissed by the learned Munsiff which petitioner challenged in C.M.A. Nos.15 and 16 of 2002. Those applications were allowed and applications were remitted to the trial court giving opportunity to petitioner to adduce evidence. Petitioner did not adduce evidence in the matter. Applications were again dismissed. That dismissal was challenged in C.M.A. Nos.36 and 37 of 2003. Appeals were allowed on payment of costs of `.1,000/- to respondent-plaintiff. Common judgment in the C.M. Appeals was challenged by respondent No.1 in this Court in C.R.P. No.722 of 2004. Petitioner did not appear in that case. This Court C.R.P. No.516 of 2008 -: 2 :- allowed the revision as per order dated June 23, 2006 and remitted C.M.A. Nos.36 and 37 of 2003 to the court of learned Sub Judge for fresh consideration. In the meantime petitioner filed R.P. No.844 of 2006 to review the order dated June 23, 2006 in the C.R.P. While that petition was pending learned Sub Judge dismissed C.M.A. Nos.36 and 37 of 2003. R.P. No.844 of 2010 was dismissed as infructuous. Now challenge in this revision is against common judgment in C.M.A. Nos.36 an 37 of 2003. It is contended by learned counsel for petitioner that petitioner has serious contentions to be urged in the suit and that respondent No.1 has no right over the suit property. It is also contended that application was filed before the learned Sub Judge in C.M.A. Nos.36 and 37 of 2003 to summon relevant records which would show that respondent No.1 had no right over the property. Learned counsel contended that the delay involved in the matter is only five days, delay may be condoned and petitioner may be given opportunity to contest the case. Learned counsel for respondents contended that petitioner was permitted to adduce evidence in support of cause for the delay in I.A. No.2043 of 2000 but that has not been done. Hence the application ended in dismissal. It is also submitted that in the meantime trial court has C.R.P. No.516 of 2008 -: 3 :- passed final decree which petitioner has challenged in A.S. No.43 of 2004. 2. May be delay involved is only of 5 days. I must bear in mind that respondent No.1 came to the court in the year 1998 seeking a decree for partition. All what happened thereafter is not due to any fault of respondent No.1. It is in the year 2000 that preliminary decree for partition was passed though in the absence of petitioner. It is also seen that petitioner had opportunity to adduce evidence regarding cause for delay as pleaded in I.A. No.2043 of 2010. But that has not been done. Matter was being shuttled between various courts beginning from the court of learned Munsiff to this Court on several occasions and now the situation is that the preliminary decree of 2000 is sought to be interfered in this case after about 10 years and the final decree itself was passed in the year 2004 which is under challenge in A.S. No.43 of 2004. So far as the contention that appellate court while considering C.M.A. Nos.36 and 37 of 2003 did not summon the documents to show that respondent No.1 has no right over the property is concerned, I am persuaded to think that, that is not a matter which the appellate court was to consider at that stage. Here is a case where respondent No.1 has C.R.P. No.516 of 2008 -: 4 :- been waiting to get a decree right from the year 1998. Now in the year 2010 having regard to the facts and circumstances I do not consider it just, proper or equitable whatever be the length of delay involved to set aside the preliminary decree and ask respondent No.1 to start from the beginning. I must also bear in mind that while C.R.P. No.722 of 2004 was considered by this Court petitioner was not present and he had to ask for a review in R.P. No.844 2004 which also ended in dismissal as it became infrucutous. In the circumstances I am not inclined nor do I consider it necessary to exercise the revisional power in favour of the petitioner. Petition is dismissed. THOMAS P. JOSEPH, JUDGE. vsv