IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 8TH JANUARY 2009 / 18TH POUSHA 1930 CRP.No. 141 of 2007() --------------------- REVN. PETITIONER: PETITIONERSRES/RESPONDENTS-RESPONDENTS- 2 TO 7 - PLAINTIFFS ------------------------------------------------------------- 1. AFROZ BANU, W/O. LATE SAYYAD YOUSUF, RESIDING AT RAILWAY STATION ROAD, POST UPPALA, UPPALA VILLAGE, KASARAGOD TALUK. 2. ZAIKAYA BANU, D/O. LATE SAYYAD YOUSUF, RESIDING AT RAILWAY STATION ROAD, POST UPPALA, UPPALA VILLAGE, KASARAGOD TALUK. 3. ASEENA BANU, D/O. LATE SAYYAD YOUSUF, RESIDING AT RAILWAY STATION ROAD, POST UPPALA, UPPALA VILLAGE, KASARAGOD TALUK. 4. ZAFARULLA, S/O. LATE SAYYAD YOUSUF, RESIDING AT RAILWAY STATION ROAD, POST UPPALA, UPPALA VILLAGE, KASARAGOD TALUK. 5. AZIMULLA, S/O. LATE SAYYAD YOUSUF, RESIDING AT RAILWAY STATION ROAD, POST UPPALA, UPPALA VILLAGE, KASARAGOD TALUK. 6. ENAITHULLA, S/O. LATE SAYYAD YOUSUF, RESIDING AT RAILWAY STATION ROAD, POST UPPALA, UPPALA VILLAGE, KASARAGOD TALUK. (PETITIONERS 1 TO 3, 5 & 6 ARE REP. BY THEIR POWER OF ATTORNEY HOLDER, ZAFARULLA, 4TH PET. HEREIN). BY ADV. SRI.MILLU DANDAPANI RESPONDENT: APPELLANTS/PETITIONERS-DEFENDANTS ------------------------------------------------ 1. FATHIMABI, AGED ABOUT 57 YEARS, W/O. LATE ABDUL MAJEED, RESIDING AT MAJALU MULINJA VILLAGE, POST UPPALA, KASARAGOD. 2. MOHAMMED NIZAM, AGED ABOUT 38 YEARS, S/O. LATE ABDUL MAJEED, RESIDING AT MAJALU MULINJA VILLAGE, POST UPPALA, KASARAGOD. 3. MOHAMMED RIYAZ, AGED ABOUT 33 YEARS, W/O. LATE ABDUL MAJEED, RESIDING AT MAJALU MULINJA VILLAGE, POST UPPALA, KASARAGOD. 4. NASEEM BANU, AGED ABOUT 29 YEARS, AGED ABOUT 57 YEARS, D/O. LATE ABDUL MAJEED, RESIDING AT MAJALU MULINJA VILLAGE, POST UPPALA, KASARAGOD. ADV. SRI.K.V.SOHAN FOR R2 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A. 394/2007 IN C.R.P. NO.141/2007 DISMISSED ORDER IN I.A. NO.663 OF 2008 IN C.R.P. NO.141/2007 DISMISSED 8.1.2009 SD/- HARUN-UL-RASHID, JUDGE HARUN-UL-RASHID, J. ---------------------------------------- C.R.P.No. 141 of 2007 ---------------------------------------- Dated this the 16th day of February , 2009 ORDER Revision petitioners herein are the plaintiffs in O.S. No. 326/1998 on the file of the Munsiff Court, Kasaragod. The petitioners herein 1 to 6 are the wife and children respectively of late Sayyed Yousuf who died on 17.3.2003 during the pendency of the suit. The 1st defendant is the sister of Sri.Sayyed yousuf and the other three defendants are her children. The suit is one for rendition of accounts of a partnership firm. The suit was decreed exparte. The preliminary decree was passed on 21.12.1998 and final decree on 30.7.2001. In E.P. 54/2002 the property in R.S. No. 74/4 of Mulinja Village was delivered over to the petitioners. 2. The defendants/ respondents herein contended that in pursuance of the preliminary decree, final decree was passed, delivery of the property though alleged to have been effected by Amin, there was absolutely no delivery and they were still in possession of the property. Hence the defendants filed I.A. No.1161/2003, under Section 5 of the Limitation Act to condone the delay in filing the application to set aside the ex-parte decree and I.A. No. 1162/2003 for setting aside the ex-parte preliminary decree as well as the final decree. The revision is filed against the orders in I.A No. 1161/2003 and 1163/2003 in O.S. C.R.P No. 141 of 2007 -2- 326/1998. 3. The parties are hereinafter referred to as plaintiffs and defendants. Late Sri Sayyed Yousuf and his brother-in- law Sri.Abdul Majeed ( 1st defendant's husband) were partners of a partnership firm. On 21.1.1991 Sri.Abdul Majeed died and therefore the partnership business was continued by Sri.Sayyed yousuf with the legal heirs of the deceased partner who are the respondents herein. The respondents herein who are the defendants in the suit have not contested the suit at the preliminary or final decree stage or during the stage of execution. According to the defendants they came to know about the suit, from the subsequent proceedings when they obtained certified copy of judgment and decree on 2.6.2003. From the decree and judgment it is understood that late Sayyed Yousuf had obtained an exparte preliminary decree in respect of 50 cents of land in R.S. 74/4 of Mulinja village which exclusively belongs to their father. It is further contended by the defendants that all the proceedings namely preliminary and final decree and delivery proceedings in the E.P were passed without the knowledge of the defendants and hence they filed I.A. 1162/2003 for setting aside the exparte preliminary decree as well as the final decree and filed I.A. 1161/2003 under Section 5 of the Limitation Act to condone the delay of 53 months in filing the petition for setting aside the exparte preliminary and final decree The suit was filed on 24.9.1998 The preliminary decree was passed on 21.12.1998 and the final decree was passed on 30.7.2001 and order in execution petition on 8.4.2002. C.R.P No. 141 of 2007 -3- 4. The application for condonation of delay and the petition for setting aside the exparte decree were seriously opposed by the plaintiffs. It is contended by the plaintiffs that the defendants received notice in the suit, in the final decree petition and also in execution . Before passing the final decree a notice was also published in the news paper. In the case of one of the defendants who was not served notice directly, publication was also effected. The Commissioner appointed in the suit to divide the property conducted site inspection, identified and measured the suit property and earmarked 23 Cents allotted to the share of the plaintiffs in the final decree proceedings. But the defendants deliberately chose to remain exparte. According to the plaintiffs the defendants are not entitled to contest the matter on merits at this distance of time and no sufficient reasons are there to condone the delay of 53 months in filing the petition to set aside the exparte decree, and to set aside the exparte decree and the proceedings are initiated only to drag the plaintiffs into another round of litigation, to harass and to cause hardship to them. The plaintiffs denied the contention of the defendants that the 50 Cents of land in R.S No. 74/4 of Mulinja Village was exclusively belongs to late Sri. Abdul Majeed the father of defendants 2 to 4. The plaintiffs also prayed for the dismissal of the of the said applications. 5. The evidence in these applications consists of the oral evidence of PW1, RW1 and RW2 and Exts.A1 to A5, B1 to B5. Exts. X1 (a) to X1(c) were also marked. The delay condonation petition and the petition to set aside the exparte decree were considered in detail by the C.R.P No. 141 of 2007 -4- trial court and the trial court held that the there was absolutely no reason for condoning the delay and for setting aside the exparte decree and all the reasons pleaded by the defendants were found to be absolutely unacceptable. Therefore the learned Munsiff dismissed the petition for condonation of delay and the petition for setting aside the exparte decree with costs to the plaintiffs. 6. The said orders were challenged by the defendants before the lower appellate court in C.M.A. 33/2005 The lower appellate court set aside the order of the learned Munsiff and condoned the delay conditionally on payment of 5,000/- as cost by the defendants to the plaintiffs and allowed the petition for setting aside the exparte decree and thus restored the suit to the file. In exercise of jurisdiction under Section 115 of the C.P.C, I have examined the propriety and legality of the orders under challenge. For the said purpose I have also examined the evidence and materials on record in order to satisfy myself as to whether the evidence is overlooked and correctly applied. 7. The defendants (petitioners in the said I.As) examined PW1 and produced Exts. A1 to A5 .The plaintiffs' (respondents in the said IAs) evidence consists of oral testimony of RW1 and RW2 and Ext.B1 to B5 . Ext.X1 , X1(a) X1(b) and X1(c) were also marked. PW1 who is one of the defendants deposed that no notice was served on them in the suit and in the subsequent proceedings. The learned counsel for the defendants relied on Ext.A3 and A4 documents . Ext.A3 is the encumbrance certificate in respect of 32 Cents of land in R.S. No.74/4 of Mulinja village for the C.R.P No. 141 of 2007 -5- period from 1st January 1972 to 31st December 1979. The certificate was obtained on 5.5.2003 in which no encumbrance regarding the period of pendency of final decree proceedings was shown. Ext. A4 is the encumbrance certificate in respect of 54 cents of land in R.S. 74/4 for the period from January 1999 to 1st February 2000 In this certificate also there was no mention about the final decree proceedings in the suit. The counsel for the defendants submitted before the trial court that the said two documents clearly reveals that the defendants were unaware of the proceedings. It is relevant to note that the final decree was passed on 30.7.2001. But the defendants had deliberately failed to produce the encumbrance certificate for the period during which the final decree was passed. Ext.A3 and A4 which were admittedly pertaining to the periods from 1972 to 1979 and 1999 to February 2000. So these documents cannot prove that they were unaware of the proceedings. At the same time the plaintiffs produced encumbrance certificate for the period from January 1989 to March 2003 marked as Ext.B4 and B5 . In Exts B4 and B5 the encumbrance certificates shows the allotment of the property made as per the final decree . The learned Munsiff in paragraph 28 of the order discussed in detail the significance of Exts. A3, A4, B4 and B5 encumbrance certificates and rightly observed that the defendants deliberately did not produce the encumbrance certificates for the relevant period. 8. On a perusal of the court records it is seen that notice was served on all the defendants in the suit., final decree application and in the C.R.P No. 141 of 2007 -6- execution petition. The trial court found that the endorsement made by the process server regarding service of notice on all the defendants shows that the defendants received notice and thereafter they failed to appear and contest the case. . 9. On the side of the plaintiffs RW1 the Amin and RW2 one of the plaintiffs were examined. The oral evidence of RW1 & RW2 and Ext.X1(a) to X1(c) makes it very clear that in all proceedings notices were served on the defendants. The endorsement of the process server shows that notice on defendants 1 and 3 in the suit was personally served and for defendant No. 4 in the suit, summons was served on the 1st defendant who is the mother. The records also shows that since the 2nd defendant was in Mumbai during the relevant time service was affected by publication in the newspaper. In the final decree application the defendants No. 1, 3 and 4 herein were served through registered post as per the acknowledgment card dated 20.8.1999. The execution petition was filed as 54 of 2004. The execution proceedings file marked as Ext. X1. Ext.X1 shows notices were served on all the respondents properly. The Amin has also deposed as RW1 that he had read over the delivery warrant to the 1st defendant and others present at the site when he effected delivery of the the property. Ext.X1(a) is the delivery receipt , Ext.X1(b) is the delivery report and Ext.X1(c) is the delivery account. The execution court in paragraph 29 discussed in detail the oral evidence of RW1 and Exts X1(a) to Ext. X1(c). 10 The defendants in order to show that the summons and C.R.P No. 141 of 2007 -7- notices were not served deposed that they were not residing in the suit property for the last five years. The trial court also noted that fact the even the present application itself as well as in the affidavit filed in lieu of oral evidence as PW1( one of the defendants), the address given is the address which was shown in the suit. It was in this address they were served notice in the final decree proceedings and in the execution petition. Further the property involved in the suit also includes the residential house of the defendants. During cross examination PW1 deposed that they have got ration card even now in the address mentioned in the suit and the defendants also cast their vote during the last parliamentary election in the same address. Except a bald denial of PW1 that the signature contained in the endorsement of process Server as well as in the registered postal acknowledgment card in the final decree are not that of the defendants there is nothing to show that the defendants are not residing in the suit property. The positive evidence discussed above including their own application in the same address conclusively establish that the defendants deliberately chose not to defend the suit. Except the bald denial of PW1 about the signatures in the above said documents, there was nothing to show that the defendants were not residing in the suit property The trial court rightly held that there was no reason at all to disbelieve the endorsement made by the process server as well as the signatures contained in the acknowledgment card in the final decree application. The trial court on an elaborate discussion concluded that the records shows that evidence adduced by PW1is falsehood. C.R.P No. 141 of 2007 -8- 11. On a consideration of the contentions of both sides, by no stretch of liberal approach it can be said that the defendants were not served the summons and not aware of the proceedings in the suit in the light of the records available as well as in nature of evidence adduced by PW1. I agree with the observations of the learned Munsiff that the property involved in the suit which was measured and identified by the Commissioner for the purpose of passing final decree, is part of the property in which a residential house of the defendants is situated and the defendants were guilty of contumacious conduct and therefore not able to get the aid of the Court. In the circumstances the order passed by the lower appellate court in C.M.A. 33/2005 is unsustainable in law and facts The lower appelate court approached the questions in a wrong angle and reversed the order passed by the trial court without any satisfactory reasons. The lower appellate order is therefore set aside . The trial court order is restored. The revision petition is allowed. There will be no order as to costs. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- C.R.P No. 141 of 2007 ---------------------------- ORDER 16th February, 2009