IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 2ND DECEMBER 2009 / 11TH AGRAHAYANA 1931 FAO.No. 311 of 2009() --------------------- OS.294/1970 of I ADDL.M.C.,TRIVANDRUM .................... APPELLANTS/ PETITIONERS 1,2 AND 3/DEFENDANTS 10,11 AND 12:- ----------------------------------------------------------------------------- 1. CHELLAPPAN THANKAPPAN, S/O. CHELLAPPAN, AGED 77, RESIDING AT SANKARAMANGALAM, PALODE, PACHA P.O., THIRUVANANTHAPURAM. 2. CHELLAPPAN RAJAPPAN, S/O. CHELLAPPAN, AGED 71, RESIDING AT PULIKUNNUVILA, VRA-59, MOSQUE LANE, PATTOM P.O., KESAVADASAPURAM, THIRUVANANTHAPURAM. 3. N. THANKAMONY, D/O. CHINNA NARAYANI, AGED 64, RESIDING AT POORADOM, T.C.14/1293, PADINJATTIL LANE, KUMARAPURAM, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM – 11. BY ADV. MR. B.N.SHIVSANKAR RESPONDENTS/ RESPONDENTS/PLAINTIFFS:- -------------------------------------------------- 1. V. SUDARSANAN, S/O. VASU, RESIDING AT KANAVILA VEEDU, BURMA ROAD, KUMARAPURAM, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM -11. 2. R. SADASIVAN @ THAMBI, PROPRIETOR MURUKAN TAILORING HOUSE, RESIDING AT PULIYAN THOPPU THERUVU, MEENAKSHIPURAM, THIRUNELVELI JUNCTION, THAMILNADU FROM THAIVILA VEEDU, VALIYATHURA, THIRUVANANTHAPURAM. (DIED REPRESENTED BY HIS LEGAL HEIR 3 TO 9 BELOW) F.A.O. No. 311/2009 : 2 : 3. P. SAKUNTHALA, W/O. LATE SADASIVAN, PANAYIL PUTHENVEEDU, THAMARAPAKAM, KUMARAPURAM, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM -II. 4. RAMANI SURESH BABU, D/O. LATE SADASIVAN, PANAYIL PUTHENVEEDU, THAMARAPAKAM, KUMARAPURAM, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM -II. 5. GEETHA SASIDARAN, D/O. LATE SADASIVAN, PANAYIL PUTHENVEEDU, THAMARAPAKAM, KUMARAPURAM, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM -II. 6. LATHA RAJAN, D/O. LATE SADASIVAN, PANAYIL PUTHENVEEDU, THAMARAPAKAM, KUMARAPURAM, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM -II. 7. MANIKANDAN, S/O. LATE SADASIVAN, PANAYIL PUTHENVEEDU, THAMARAPAKAM, KUMARAPURAM, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM -II. 8. ANITHA, D/O. LATE SADASIVAN, PANAYIL PUTHENVEEDU, THAMARAPAKAM, KUMARAPURAM, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM -II. 9. S.S. KANNAN, S/O. LATE SADASIVAN, PANAYIL PUTHENVEEDU, THAMARAPAKAM, KUMARAPURAM, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM -II. 10. VELAYUDHAN APPUKUTTAN, T.C. NO.13/1427, MELEVILA CHERUVILAKOM VEEDU, BURMA ROAD, KUMARAPURAM, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM -II. (DIED REPRESENTED BY HIS LEGAL HEIRS 11 TO 16 BELOW) 11. KALYANI REGHUPATHY, D/O. VELAYUDHAN APPUKUTTAN, NOW RESIDING AT T.C. NO.13/1427, MELEVILA CHERUVILAKOM VEEDU, BURMA ROAD, KUMARAPURAM, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM – II. F.A.O. No. 311/2009 : 3 : 12. REGHUPATHY VALSALA, D/O. VELAYUDHAN APPUKUTTAN, NOW RESIDING AT T.C. NO. 13/1427, MELEVILA CHERUVILAKOM VEEDU, BURMA ROAD, KUMARAPURAM, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM – II. 13. REGHUPATHY KUSALA, D/O. VELAYUDHAN APPUKUTTAN, NOW RESIDING AT T.C. NO. 13/1427, MELEVILA CHERUVILAKOM VEEDU, BURMA ROAD, KUMARAPURAM, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM – II. 14. REGHUPATHY GIRIJA, D/O. VELAYUDHAN APPUKUTTAN, NOW RESIDING AT T.C. NO. 13/1427, MELEVILA CHERUVILAKOM VEEDU, BURMA ROAD, KUMARAPURAM, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM – II. 15. REGHUPATHY BEENA, D/O. VELAYUDHAN APPUKUTTAN, NOW RESIDING AT T.C. NO. 13/1427, MELEVILA CHERUVILAKOM VEEDU, BURMA ROAD, KUMARAPURAM, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM – II. 16. APPUKUTTAN CHANDRAN, S/O. VELAYUDHAN APPUKUTTAN, NOW RESIDING AT T.C. NO. 13/1427, MELEVILA CHERUVILAKOM VEEDU, BURMA ROAD, KUMARAPURAM, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM -II. 17. CHINNA KAMALAKSHI, VALIYAVILAKATHU VEEDU, BURMA ROAD, KUMARAPURAM, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM -II. 18. PACHAN CHELLAPPAN, VILAYIL VEEDU, THYCAUD, CHENGAZHASSERY VILLAGE, THIRUVANANTHAPURAM. 19. KOCHAMMINI PACHI, THAMARABHAGATHU PANAYIL VEEDU FROM VARUVILAKATHU VEEDU, THYCAUD, CHENGAZHASSERY VILLAGE, THIRUVANANTHAPURAM. F.A.O. No. 311/2009 : 4 : 20. VELAYUDHAN SREEDHARAN, THAMARABHAGATHU PANAYIL VEEDU FROM VARUVILAKATHU VEEDU, THYCAUD, CHENGAZHASSERY VILLAGE, THIRUVANANTHAPURAM. 21. PACHI RAJAMMA, KINARUVILAKATHU VEEDU, NEAR KANJIRAVILAKOM, PETTAH, THIRUVANANTHAPURAM FROM VARUVILAKATHU VEEDU OF PETTAH, THIRUVANANTHAPURAM. 22. PACHI VASANTHI, KINARUVILAKATHU VEEDU, NEAR KANJIRAVILAKOM, PETTAH, THIRUVANANTHAPURAM. 23. VELAYUDHAN VAMADEVAN – FITTER, TRAVANCORE TITANIUM PRODUCTS, KOCHUVELI, THIRUVANANTHAPURAM. 24. PACHI SAKUNTHALA, PULIYANTHOPPU THERUVU, MEENAKSHIPURAM THIRUNELVILI FROM, PANAYIL VEEDU, THIRUVANANTHAPURAM. 25. PACHI SANTHAMMA, PANAYIL VEEDU, THAMARABHAGAM, KUMARAPURAM, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM II. 26. VELAYUDHAN THULASIDARAN, T.C. 2595, PANAYIL VEEDU, THAMARABHAGAM, KUMARAPURAM, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM -II. 27. PACHI VASANTHA, PANAYIL VEEDU, THAMARABHAGAM, KUMARAPURAM, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM -II. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 02/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. ........................................... F.A.O.No.311 OF 2009 ............................................. Dated this the 2nd day of December, 2009 J U D G M E N T This is a classic case to demonstrate difficulty experienced by litigants in civil courts. Defendants 10 to 12 in O.S.No.294/1970 after a long period of 38 years moved an application for setting aside the ex-parte decree against them on the ground that no notice is served on them. After filing the same, they did not mount the box nor did produce a scrap of paper in support of the contentions raised in the petition. 2. The learned Additional Munsiff had perused the records and was satisfied that notice to defendants 10 to 12 were affixed for the reason that they refuted to receive the summons and it is also specifically incorporated in the endorsement by the process server that there was refusal and it was in their presence, the summons was affixed. The court also states about history of the litigation and thereafter dismissed the application. 3. Now a bunch of documents are attempted to be : 2 : F.A.O.No.311 OF 2009 thrushed into the case by virtue of I.A.No.4318/2009. Reception of a document in the appellate stage is governed by the provisions under Order 41 Rule 7 of the C.P.C. Documents can be produced at three stages or for three reasons; namely the document was not in existence at the time of the pronouncement of the order or in spite of due diligence, not in a position to produce the documents and lastly for any other sufficient reasons. When a petition to set aside the ex-parte decree is passed after a long period of 38 years, there is a fundamental duty cast upon the person to satisfy the conscience of the court for the inordinate delay in filing the application. I am conscious of the fact that always matters should be heard and if possible, dispose of it on merits. Here is a suit where a large number of defendants, process had been issued and service had been effected by affixture and thereafter a preliminary decree, a final decree and delivery has taken effect. Three persons after 38 long years is attempting to come to the court with the grievance that they were not served with summons. As rightly pointed out by the learned Munsiff, I : 3 : F.A.O.No.311 OF 2009 hold that there is absolutely no ground to condone the delay or to set aside the ex-parte decree as prayed for and much less any reason to receive the documents produced along with the appeal as I.A.No.4318/2009. Therefore, the appeal lacks merit and the same is dismissed. M.N. KRISHNAN, JUDGE cl