IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE WEDNESDAY, THE 3RD DECEMBER 2008 / 12TH AGRAHAYANA 1930 RFA.No. 71 of 2007() -------------------- JUDGMENT AND DECREE IN OS.202/1995 of PRINCIPAL SUB COURT, ATTINGAL .................... APELLANT/10TH DEFENDANT ------------------------------------------- NIRMALAN, S/O.KUNJURAMAN, AGED 34, THADATHARIKATHU VEEDU, MISSION KUNNU, THOLIKKUZHI, ADAYAMON P.O., PAZHAYAKUNNUMMEL VILLAGE. BY ADV. SRI.M.DINESH RESPONDENT: PLAINTIFFS 1 TO 6 AND DEFENDANTS 3 TO 9 ------------------------------------------------------ 1. THULASEEDHARAN, S/O.KUNJURAMAN, AGED 48, PANAYIL PUTHEN VEEDU, ATTUMBHAGAM, ADAYAMON DESOM, PAZHAYAKUNNUMMEL VILLAGE. 2. PEETHAMBARAN, S/O.KUNJURAMAN, AGED 41, PANAYIL PUTHEN VEEDU, ATTUMBHAGAM, ADAYAMON DESOM, PAZHAYAKUNNUMMEL VILLAGE. 3. MANIRAJAN, S/O.KUNJURAMAN, AGED 35, PANAYIL PUTHEN VEEDU, ATTUMBHAGAM, ADAYAMON DESOM, PAZHAYAKUNNUMEL VILLAGE. 4. SARALAKUMARI, D/O.KUNJURAMAN, AGED 32, PANAYIL PUTHEN VEEDU, ATTUMBHAGAM, ADAYAMON DESOM, PAZHAYAKUNNUMMEL VILLAGE. 5. ASOKAN, S/O.KUNJURAMAN, AGED 26, PANAYIL PUTHEN VEEDU, ATTUMBHAGAM, ADAMON DESOM, PAZHAYAKUNNUMMEL- VILLAGE. RFA 71/07 6. PURUSHOTHAMAN, S/O.KUNJURAMAN, AGED 57, PANAYIL PUTHEN VEEDU, ATTUMBHAGAM, ADAYAMON DESOM, PAZHAYAKUNNUMMEL VILLAGE. 7. BRAHMADAS S/O.KUNJURAMAN, AGED 51, CHERUNARAKAMKOTTA MANIMANDIRAM, ADAYAMON DESOM, PAZHAYAKUNNUMMEL VILLAGE. 8. VASANTHA, W/O.BRAHMADAS, AGED ABOUT 45, CHERUNARAKAMKOTTA MANIMANDIRAM, ADAYAMON DESOM, PAZHAYAKUNNUMEL VILLAGE. 9. VAMALOCHANA, D/O.KUNJURAMAN, AGED 54, PANAYIL VASANTHA VILASOM, ATTUMBHAGAM, ADAYAMON DESOM, PAZHAYAKUNNUMMEL VILLAGE. 10. SIVADASAN, S/O.SANKARAN, AGEED ABOUT 58, (HUSBAND OF VAMALOCHANA), PANAYIL VASANTHA VILASOM ATTUMBHAGAM ADAYAMON DESOM, PAZHAYAKUNNUMMEL VILLAGE. 11. SUDHA, D/O.KUNJURAMAN, AGED ABOUT 46, PANAYIL CHARUVILA PUTHEN VEEDU, ATTUMBHAGAM, ADAYAMON DESOM, PAZHAYAKUNNUMMEL VILLAGE. 12. VISWAMBHARAN, S/O.GANGHADHARAN, (HUSBAND OF SUDHA), AGED ABOUT 59, PANAYIL CHARUVILA PUTHEN VEEDU, ATTUMBHAGAM, ADAYAMON DESOM, PAZHAYAKUNNUMMEL VILLAGE. 13. SOMARAJAN, S/O.KUNJURAMAN, AGED 37, THADATHARIKATHU VEEDU, MISSION KUNNU, THOLIKKUZHI, ADAYAMON P.O., PAZHAYAKUNNUMMEL VILLAGE. R1 TO R6 BY ADV. SRI.L.MOHANAN SRI.M.V.KIRAN MOHAN THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 03/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A.NO.438 OF 2007 IN R.F.A.NO.71 OF 2007 DISMISSED. 3.12.2008 SD/- PIUS C.KURIAKOSE, JUDGE. PIUS C. KURIAKOSE,J. - - - - - - - - - - - - - - - - - - - - - - - - - R.F.A.No.71 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 3rd December, 2008 JUDGMENT The 10th defendant is the appellant. The suit was for declaration of title, setting aside the decree and judgment in O.S.No.15 of 1991 on the files of the Munsiff's Court, Attingal and for a declaration that the settlement deed No.600/82 of the Kadakkal S.R.O. is void and also for prohibitory injunction. The pleadings have been narrated correctly by the learned Subordinate Judge and I do not propose to narrate them over again. On the basis of the pleadings, the learned Subordinate Judge raised the following issues for trial: 1. Is not the suit maintainable? 2. Is the suit hit by res judicata in view of the decree in O.S.55/1987 and O.S.15/1991 of the Munsiff's Court, Attingal? 3. Is the suit liable to be stayed under Sec.10 CPC in view of the pendency of O.S.318/1995 on the file of the Munsiff's Court, Attingal and O.P.(Pauper) 33/1993 of Sub Court, Attingal? 4. Have the plaintiffs got title and possession over the plaint schedule properties as claimed? 5. Is settlement deed No.600/1982 of the Kadakkal SRO liable to be RFA 71/07 - 2 - ignored or declared void? 6. Are the plaintiffs entitled to set aside the decree and judgment in O.S.15/1991 on the grounds of fraud and misrepresentation? 7. Are the plaintiffs entitled to the injunction claimed? 8. Is the suit properly valued and sufficient court-fee paid? 9. Reliefs and Costs. 2. The appellant was set ex parte. The 1st defendant filed a written statement admitting the claim. Defendants 2 to 9 filed written statement and it is the contentions in that written statement and as already stated the contentions in the written statement have been correctly narrated by the learned Subordinate Judge. The 1st defendant died pending the suit and plaintiffs and the defendants 2, 3, 5, 7, 9 and 10 recorded as his legal heirs. At trial the evidence on the side of the plaintiffs consisted of 3rd plaintiff's own testimony as P.W.1 and Exts.A1 to A22. There was absolutely no counter evidence was adduced by the contesting defendants. Thus, virtually the suit proceeded ex parte against all the defendants. The learned Subordinate Judge for obvious reasons would rely on the unchallenged testimony of P.W.1 and the uncontroverted documents produced on the side of the plaintiffs and answered all the issues in RFA 71/07 - 3 - favour of the plaintiffs and would accordingly decreed the suit as prayed for. 3. In this appeal the judgment and decree under appeal are impugned on various grounds including the ground that adequate opportunity was not afforded by the court below to the appellant for raising contest and also for substantiating the contest which he wanted to raise. 4. I have heard the submissions of Mr.M.Dinesh, learned counsel for the appellant and also those of Mr.L.Mohanan, learned counsel appearing for the plaintiffs-respondents 1 to 6. 5. Mr.Mohanan would fairly concede that for all practical purposes, the learned Subordinate Judge has proceeded ex parte against all the defendants. Though several grounds have been raised in the memorandum of appeal, Mr.Dinesh at the time of hearing would confine his request for a remand to the court below. He submitted that the court below can be directed to pass revised judgment in the case within a time frame. 6. Having considered the submissions addressed before me, I feel that there is justification for giving opportunity to the appellant (10th defendant) to contest the suit and to participate in the trial. I RFA 71/07 - 4 - would have been inclined to grant such opportunity only on imposition of terms. But it is seen that it was subjecting the appellant to terms that the appeal itself was considered for admission after condoning the delay caused in the matter. Under the above circumstances, I become inclined to remand the matter back to the trial court without imposing any further terms on the appellant. 7. The result is that the judgment and decree under appeal will stand set aside and the suit will go back to the Subordinate Judge's Court, Attingal. The appellant will file written statement, if any, within one month of the first posting made by the court below after receiving copy of this judgment. The learned Subordinate Judge will formulate additional issues, if any, on the basis of the contentions raised in the written statement to be filed by the appellant. Thereafter, the suit will be special listed for trial in the earliest available special list and will conduct the trial giving opportunity to the appellant to adduce whatever evidence the appellant wants to substantiate the contentions in the written statement. If the appellant adduces evidence, opportunity will be given to the plaintiffs to adduce counter evidence. The other defendants in the suit who have filed written statement can be permitted to cross-examine the appellant RFA 71/07 - 5 - and any other witness who may be examined on the side of the appellant. But they shall not be permitted to adduce any further evidence. Those defendants can be permitted to cross-examine the plaintiffs if they get themselves examined again to the extent the cross-examination is confined to the contentions raised by the appellant in the appellant's written statement. The learned Subordinate Judge will make every endeavour to pass revised judgment in the case as expeditiously as possible and at any rate within six months of receiving copy of this judgment. This order of remand will become operative only if the full court fee is remitted by the appellant within three weeks from today. Though the appeal is being disposed of by passing an order of remand, I am not inclined to refund the court fee paid by the appellant since the remand is necessitated due to the default of the appellant himself. The appeal is allowed as above. srd PIUS C.KURIAKOSE, JUDGE