IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 1ST JUNE 2009 / 11TH JYAISHTA 1931 WP(C).No. 14068 of 2009(O) -------------------------- CMAs.16&17/2008 of II ADDL.DISTRICT COURT,ERNAKULAM OS.524/2000 of PRL.MUNSIFF'S COURT.,ERNAKULAM .................... PETITIONER(S): ------------------------ SURENDRA SHENOY ALIAS BABU, S/O. GOPALA SHENOY, THAMMANATHUPARAMBIL HOUSE, THAMMANAM P.O., PONNURUNNI, POONITHURA VILLAGE, KANAYANNUR TALUK. BY ADV. MR.S.VINOD BHAT RESPONDENT(S): -------------------------- 1. SHOBA, THAMMANATHUPARAMBIL HOUSE, PONNURUNNI, THAMMANAM P.O. 2. GEETHA, NIKARTHIL HOUSE, PUTHUKULANGARA,KUTHIYATHODU P.O., CHERTHALA. 3. CHITHARAVATHI, THAMMANATHUPARAMBIL HOUSE, PONNURUNNI, THAMMANAM P.O.. 4. MANI, THAMMANATHUPARAMBIL HOUSE, PONNURUNNI, THAMMANAM P.O., 5. P.J. PAULY, S/O. JOSEPH, PALLATHU HOUSE,THAMMANAM P.O., POONITHURA VILLAGE, KANAYANNUR TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/05/2009, THE COURT ON 01/06/2009 DELIVERED THE FOLLOWING: Kss S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.14068 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 1st June, 2009 JUDGMENT The Writ Petition is filed under Article 227 of the Constitution of India seeking the following reliefs: 1. Issue a writ of certiorari or order setting aside Exts.P9 and P10 order and judgment and directing the court below to reconsider Ext.P5 to P8 applications. 2. Issue a writ or order allowing Exts.P5 to P8 applications; and 3. Grant such other reliefs which are prayed for hereafter and which this Hon'ble Court deems fit to grant. Petitioner is the defendant in O.S.No.524/2000 on the file of the Munsiff's Court, Ernakulam. Suit was one for partition and injunction and Ext.P2 is the copy of the plaint in the suit. Petitioner/defendant remained ex parte, and a preliminary decree in favour of the plaintiffs and also an injunction restraining the defendant from alienating the property or inducting strangers thereto was passed by the above court on 23.8.2000. Ext.P4 is the copy of the judgment. Pursuant to the preliminary decree, it is admitted, a final decree was also passed in the suit. It appears from the copy of the petition moved by the petitioner to set aside the ex parte decree, copy of which is produced W.P.C.No.14068/09 - 2 - as Ext.P5, that the final decree in the suit was passed on 19.10.2004. Petitioner applied for setting aside the ex parte decrees both preliminary and final (Exts.P5 and P6) with separate petitions for condoning the delay(Exts.P7 and P8). After considering the merit of the petitions, the learned Munsiff passed a common order, copy of which is produced as Ext.P9, dismissing the applications. Challenging Ext.P9 order, the petitioner moved two appeals before the District Court. Those appeals were also dismissed by Ext.P10 order. Questioning the correctness of the orders passed under Exts.P9 and P10, the petitioner has filed the Writ Petition invoking the extraordinary supervisory jurisdiction of this court under Article 227 of the Constitution of India. 2. I heard the learned counsel for the petitioner. The petitioner who suffered from mental illness lost his mental equilibrium and was roaming from place to place and hence he could not take effective steps to enter appearance and defend his claims in the suit, and that in a previous suit the claim raised by the plaintiffs were found against and that suit was dismissed, and in respect of the property covered by the suit, a settlement deed had been executed exclusively conferring all absolute rights in his favour are some of the grounds W.P.C.No.14068/09 - 3 - canvassed by the learned counsel to persuade me to interfere with Exts.P9 and P10 orders and grant him an opportunity to have a decision on merits setting aside the ex parte decrees, both preliminary and final, in the suit. After going through the materials produced along with the Writ Petition and also the submissions made by the counsel, I find that the conclusion reached by the learned Munsiff after enquiry in the petitions filed for setting aside the ex parte decrees that the case presented by the petitioner that he suffered from severe disabilities preventing him from defending his claim in the suit is not true to facts and unacceptable, which is concurred by the learned District Judge in the appeals, cannot be found fault with. During the relevant period in respect of which he claimed loss of mental equilibrium, it has come out in the enquiry, he was working as a temporary driver in the Collectorate, and he used to drive the vehicle of the R.D.O. He did not produce any document to show that he had any treatment for mental illness. When that be the case, it goes without saying that he had no cause leave alone sufficient cause for setting aside the ex parte decrees passed against him. The argument raised by the learned counsel on the basis of the previous suit, copy of judgment of which is Ext.P1, also does not lend W.P.C.No.14068/09 - 4 - him any assistance to advance his case. Ext.P1 judgment shows that the suit was dismissed as not maintainable without adjudicating the other issues. The dismissal of Ext.P1 suit holding that it was not an ancestral property as claimed by the plaintiffs but the absolute property of the mother of both the plaintiffs and the defendant, in no way barred a subsequent suit for partition after the death of the mother. His mother had executed a deed in his favour is the claim of the petitioner. That claim should have been adjudicated in the suit. Evidently, deliberate laches and culpable negligence on the part of the petitioner led to passing of ex parte decrees both preliminary and final against him. On the facts and circumstances presented, I find there is no scope for interfering with the orders Exts.P9 and P10 orders of the learned Munsiff and learned District Judge respectively invoking the supervisory jurisdiction of this court under Article 227 of the Constitution. The Writ Petition is dismissed. srd S.S. SATHEESACHANDRAN, JUDGE