IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 15TH JANUARY 2010 / 25TH POUSHA 1931 FAO.No. 347 of 2009(C) --------------------- AGAINST THE ORDER DATED 10/07/2009 IN IA 3708/06 IN OS.115/1996 of PRINCIPAL SUB COURT, PALAKKAD .................... APPELLANT/2ND PETITIONER/2ND DEFENDANT. ----------------------------------------------------------- RAMALINGAM PILLAI, S/O. RAMASWAMY PILLAI, RESIDING AT KANJIKODE, PUDUSSERY AMSOM, PALAKKAD TALUK. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD A.R. SRI.C.A.ANOOP RESPONDENTS: PETITIONERS1,3 TO 9& RESPONDENT/DEFENDANTS 1,3 TO 19 ----------------------------------------------------------------- 1. MARUCHALAM PILLA, S/O. RAMASWAMY PILLA. 2. DEVARAJAN, S/O. RAMASWAMY PILLA. 3. NARAYANAN, S/O. RAMASWAMY PILLA. RESPONDNETS 1 TO 3 ARE RESIDING AT KANIKOKDE, PUDUSSERY, PALAKKAD TALUK. 4. RAJAMMAL, D/O. RAMASWAMY PILLA, RESIDING AT PARA, ELAPULLY, PALAKKAD TALUK. 5. SARASWATHY, D/O.RAMASWAMY PILLA, RESIDING AT KANJIKODE, PUDUSSERY AMSOM, PALAKKAD TALUK. 6. JAYANTHY, W/O. RANGASWAMY, RESIDING AT NO.7/66, ESAYAPALAYAM, KUNIYAMMUTHUR, COIMBATORE DISTRICT. 7. LATHA, W/O. CHAKKALINGAM, RESIDING AT NO.7/66, ESAYAPALAYAM, KUNIYAMMUTHUR, COIMBATORE DISTRICT. 8. JNAMBAL, W/O. KANAKAM PILLA. 9. MOHANDAS, D/O. KANAKAM PILLA. 10. SURESH BABU, D/O. KANAKAM PILLA. 11. KUNJAMMAL, W/O. NARAYANAN. 12. RAJAMMA, W/O. MARUTHACHALAM PILLA. 13. SELVAN, S/O. MARUTHACHALAM PILLA. 14. KANNAN, S/O. MARUTHACHALAM PILLA. 15. VIJAYA, D/O. MARUTHACHALAM PILLA. 16. GURUVAYOORAPPAN, S/O.MARUTHACHALAM PILLA 17. ARUMGHAN, S/O. MARUTHACHALAM PILLA. 18. VASANTHA, D/O. MARUTHACHALAM PILLA. ALL RE RESIDING AT MEENAKSHYPUYRAM VILLAGE, CHITTOOR TALUK, PALAKKAD. ALL ARE RESIDING AT MEENAKSHYPURYAM VILLAGE, CHITTUR TALUK, PALAKKAD 19. SIVABHAGYAM, W/O. RAJAPPAN, RESIDING AT PUDUPALAYAM, VALIYAPADAM, PUTHUR AMSOM, PALAKKAD DISTRICT. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 15/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A. K. BASHEER & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. NO: 347 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of January, 2010. JUDGMENT Basheer J., This appeal is at the instance of defendant No.2 in a suit for partition. He impugns the order passed by the court below, rejecting his plea to set aside the exparte preliminary decree after condoning the delay of 1466 days. 2. Admittedly, the preliminary decree was passed on October 7, 2002. The plaintiff is none other than the sister of appellant/ defendant No.2. She sought partition and seperate allotment of one out of 9 shares in the plaint schedule properties. 3. In the application for condonation of delay, it was contended by the appellant that he had been suffering from hyper F.A.O. NO: 347 of 2009 :2: tention, paralysis and rheumatic complaints and therefore he could not appear before the court. For the same reason, he could not engage or advise his counsel to file an application, to set aside the exparte decree within time. 4. The plaintiff stoutly resisted the application and contended that the only attempt of the appellant was to deny her legitimate share in the property. The court below, after careful consideration of the rival contentions, found that there was no plausible explanation for the inordinate delay and accordingly dismissed the application for condonation. Consequently, the petition to set aside the exparte decree was also dismissed. 5. In view of the persuasive plea made by the learned senior counsel for the appellant, to admit the appeal, even on heavy terms, we have called for the lower court records in order to find out the real nature of the contentions raised by the appellant. We have carefully perused the plaint, written statement and other relevant records. F.A.O. NO: 347 of 2009 :3: 6. As mentioned earlier, the preliminary decree for partition was passed on October 7, 2002. The appellant, along with defendants 1, 3 and 4 filed a written statement contending inter-alia that the properties were not available for partition and that the income that was allegedly being received from the property was not correct etc. Fortunately, it was conceded by the appellant, that the plaintiff was his own sister; but according to him, the plaint scheduled properties were not acquired by their father as alleged in the plaint. 7. The written statement filed by the appellant is a classic example of how evasive and hazy such a statement can be. It is true that in the written statement the appellant has contended that the plaint schedule properties are not available for partition. He refers to two or three names, who, according to the appellant, had acquired those properties. Who those persons are and how they have acquired and when, are not mentioned at all. Each and every paragraphs of the plaint has been denied by the defendant without F.A.O. NO: 347 of 2009 :4: specifying how and under what circumstances or on the basis of which documents, such contentions have been raised. No document was produced along with the plaint. The share claimed by the plaintiff was denied in one sentence. The contentions raised in the written statement will amply show the only attempt of the appellant seems to be to procrastinate the litigation and to deny the fruits of the decree to the plaintiff, as contended by her. 8. Having perused the plaint and written statement and other relevant materials on record, we are fully satisfied that there is considerable force in the contention raised by the respondent in this regard. 9. Now coming to the merit of the averments made in the affidavit filed in support of the two applications, it can be seen that all those averments are totally unconvincing and may at once be noticed that in the year 2003, shortly after passing of the exparte decree, the son of the appellant had filed an application to set aside the exparte decree along with a petition to condone the delay of 297 F.A.O. NO: 347 of 2009 :5: days as I.A. Nos. 3286 of 2003 and 3301 of 2003. Significantly, the son of the appellant is not a party to the suit. 10. The present applications were filed by the appellant three years thereafter, during the pendency of the above applications filed by his son. In the affidavit, the appellant stated that he had been conducting the suit for an on behalf of other defendants and that happened to be set exparte since he was absent due to illness. 11. It is significant to note that the appellant in his affidavit has candidly admitted that he came to know about the exparte decree as early as on August 25, 2003 when he received notice in the final decree proceeding. His son filed an application to set aside the decree with a petition to condone the delay of 297 days; but still the appellant did not choose to do so. The appellant had not stated any convincing reason for the inordinate delay of 1446 days. In other words, there was no explanation at all, as to what prevented from filing the application within time. The casual statement was that he was suffering from hyper tension, paralysis and rheumatic F.A.O. NO: 347 of 2009 :6: complaints. He had no case that he was undergoing treatment in connection with his ailments in any hospital. His specific case was that he was under self medication. No Doctor was examined. Not even a medical certificate was produced. It was in the above circumstances, that the court below, rightly, in our view, rejected the prayer to condone the delay of 1466 days in filing the petition to set aside the exparte decree. 12. In this context, these contentions, it may also be mentioned that no other defendant has bothered to approach the court with a plea to set aside the exparte decree. 13. Having regard to the totality of the facts and circumstances of the case, particularly the circumstances referred to above, we are totally satisfied that the court below was justified in rejecting the two applications filed by the appellant. In our view, the court below was also justified in dismissing the two applications filed by the son of the appellant. It has not been disclosed as to why the court below had got kept those two F.A.O. NO: 347 of 2009 :7: petitions pending for such a long time. Anyway, the court below has rightly found that the applications filed by the son of the appellant, who was not a party to the suit, were not maintainable. 14. In any view of the matter, there is no merit in any of the contentions raised by the appellant. The appeal fails and it is accordingly dismissed. A. K. BASHEER, JUDGE M. L. JOSEPH FRANCIS, JUDGE. dl/