IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 26TH JUNE 2009 / 5TH ASHADHA 1931 FAO.No. 84 of 2009(E) --------------------- CMA.24/2007 of D.C.& SESSIONS COURT,THODUPUZHA IA.509/06 IN FDA.1123/96 IN OS.41/1993 of SUB COURT,KATTAPPANA .................... APPELLANT(S)/PETITIONER/3RD RESPONDENT: ------------------------------------------------------------------- N. GOPI RAO , (GOVINDA RAO), S/O. LATE NAMU, SUSITHAPUR 44, B.K.R. ROAD, COIMBATHORE CITY, COIMBATORE DIST, TAMIL NADU. (DIED) ADDL. APPELLANTS 2 TO 6 IMPLEADED. 2. SMT. KRISHNA VENI, W/O. LATE GOPI RAO, PAZHKACHERY HUSE, THEKKADY P.O., KUMILY VILLAGE, UDUMPANCHOLA TALUK, IDUKKI DIST. 3. MANIKANDAN, S/O. LATE GOPI RAO (GOVINDA RAO), AGED 26 YEARS, PAZHAKACHERY HOUSE, THEKKADY P.O., KUMILY VILLAGE, UDUMPANCHOLA TALUK, IDUKKI DISTRICT. 4. SMT. SINDHU, D/O. LATE GOPI RAO (GOVINDA RAO) AND W/O. T. KESAVA RAO, AGED 32 YEARS, 165-”SRISAI”, NAGAR, SAMATHUVAPURM, CHETTIPALAYAM, COIMBATORE, TAMIL NADU. 5. SMT. INDU, D/O. LATE GOPI RAO (GOVINDA RO AND W/O. J. SURESH MOHAN, AGED 30 YEARS, 3/167, V.K.V. NAGAR, N.G.G.O. COLONY, COIMBATORE-641022. 6. SMT. REKHA, D/O. LATE GOPI RAO (GOVINDA RAO) AND W/O. J. NAGENDRAN, AGED 28 YEARS, 4/452 A, “OM SHAKTHI ILLAM” ARUNA NAGAR, K.VADA, MADURAI, COIMBATORE 641 017. ADDL. APPELLANTS 2 TO 6 IMPLEADED AS PER ORDER IN I.A. 1204/2009 DATED 26.6.2009. BY ADV. SRI.T.V.GEORGE RESPONDENT(S)/COUNTER PETITIONERS: ---------------------------------------------------------- 1. T. RADHA BAI, W/O. LATE THUKKU RAM, ANARKKALY HOUSE, THEKKADY P.O., THEKKADY KARA, KUMILY VILLAGE. 2. N.HARISANKARA RAO, S/O. LATE NAMU 73 C, RESIDING AT VELLAR STREET, ARAPALAYAM P.O., MADURAI (DIED LEGAL HEIRS 16 TO 19) 3. N. NARAYANA RAO, S/O. NAMU, PAZHAYAKKACHERRY HOUSE, THEKKADY P.O., KUMILY VILLAGE. 4. N. KRISHNA RAO, S/O. LATE NAMU, DO. DO...DO.. 5. N. RUGMINI BAI, W/O. KRISHNA RAO, 63, RESIDING AT SURYA COMPOND, VELLAR STREET, ARAPALAYAM, MADURA (DIED LEGAL HEIRS 8 TO 12) 6. K. RAJAMMA BHAI, W/O. K.BALANDHA RAO, KATTIYALA NADAR COMPOUND OPPOSITE R.C. CHURCH, PAZHAYANTHAM P.O., MADHURA. 7. T. PRASAD RAO, S/O. THUKKURAM RAO, DEFENCE SERVICE, ANARKKALI HOUSE, THEKKADY KARA, KUMILY VILLAGE. 8. K. MURALY, S/O. K. RUGMINI BHAI, 63, SURYA KANNU COMPOUND VELLAR STREET, ARAPALAYAM P.O., MADURAI. 9. K. AMARANADH DO...DO.... 10. K. JANARDHANAN, DO............DO........ 11. K. RAJESH, DO...........DO.......... 12. HEMALATHA DO......DO............. 13. CHANDRA, W/O. LATE MARANATHU DO...........DO............ 14. MALTER SATHEESH, S/O. AMARANATHU DO.........DO......... 15. MALTER VINOD, S/O. LATE AMARANATHU.DO. DO........... 16. JEEVA BHAI, W/O. LATE N. HARISANKAR RAO, 85 PILLAIYAR STREET, AMARAPALAYAM, MADURAI-10 . 17. RAMESH, S/O. LATE HARISANKARA RAO DO...DO........... 18. SURESH, S/O. LATE HARISANKARA RAO, DO...DO..... 19. ASOK, S/O. LATE MARISANKARA RAO, DO....DO................ ADDL. RESPONDENTS 20 TO 25 IMPLEADED. 20. GIRIJA BAI, W/O. LATE NARAYANA RAO AND W/O. PRDEEP -DO- -DO- 21. SMT. BINDU, D/O. LATE NARAYANA RAO AND W/O. PRADEEP -DO- -DO- 22. GEETHA, D/O. LATE NARAYANA RAO AND W/O. MOHANAN -DO- -DO- 23. VAITHEESH RAO, S/O. LATE NARAYANA RAO, PAZHAKCHERY HOUSE, THEKKADY.P.O., KUMILY VILLAGE, UDUMPANCHOLA TALUK, IDUKKI. 24. SMT. KASTHURI, D/O. LATE KRISHN RAO AND W/O. APPA RAO, PAZHAKACHERY HOUSE, THEKKADY P.O., KUMILY VILLAGE. 25. SMT. RANI, D/O. LATE KRISHNA RAO AND W/O. MOHANAN, PAZHAKACHERY HOUSE, THEKKADY P.O., KUMILY VILLAGE. ADDL. RESPONDENTS 20 TO 25 MPLEADED AS PER ORDER DATED 26.6.2009 IN I.A. 1205 OF 2009. ADV. SRI.T.I.ABDUL SALAM FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 22/06/2009, THE COURT ON 26/06/2009 DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 84 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of June, 2009. JUDGMENT Bhavadasan, J, Aggrieved by the order dated 31.1.2007 in I.A. No.509 of 2006 in F.D.A. 1123 of 1996 in O.S. 41 of 1993, petitioner before the court below has come up in appeal. 2. The suit was one for partition. A preliminary decree has been passed. Plaintiff thereafter filed petition for passing of the final decree. According to the appellant, he did not receive notice in the final decree proceedings and therefore he was unaware of the same. He would say that it was under such circumstances that he was set ex-parte in the final decree proceedings. It is also pointed out by him that he had filed an appeal from the preliminary decree. But that was dismissed later. Alleging that he has substantial contentions to be raised in the final decree, he sought setting aside of the final decree. 3. Petition was resisted by the respondents, who pointed out that the petitioner was fully aware of the proceedings FAO. 84/2009. 2 and this is a deliberate attempt to protract the proceedings. 4. Before the court below, petitioner examined himself as P.W.1 and Ext.A1 marked. On a consideration of the materials before it, the court found that there was no sufficient reasons made out by the appellant to have the ex-parte decree set aside. Accordingly the petition was dismissed. The said order is assailed. 5. Appellant was the third defendant in the suit for partition. Suit was preferred by one of the sisters of the appellant seeking one sixth share over the suit property. It appears that from the preliminary decree the appellant had filed an appeal as A.S.545 of 1996 before this court. The said appeal was dismissed. Thereafter plaintiff appears to have filed F.D.A. 1123 of 1994 before the Sub Court, Kattappana for passing of the final decree. The appellant would say that at the relevant time he was undergoing treatment at Tamil Nadu and he had no notice of the proceedings. He had substantial contentions to be raised in the final decree. Due to the want of notice to him, he is precluded from raising the contentions, and that causes substantial injury to him. Therefore he seeks opportunity to contest the FAO. 84/2009. 3 final decree application. 6. The court below has noticed that the claim of the appellant that since he had filed an appeal from the preliminary decree, his counsel advised him that no final decree will be passed, cannot be accepted. It is also pointed out that even after appeal from the preliminary decree was dismissed, there was no attempt on the side of the appellant to follow up the proceedings. The court below was of the opinion that no sufficient grounds have been made out to allow the application especially in the light of the fact that the medical certificate produced by the appellant is not acceptable since the Doctor was not examined. 7. It is seen that appeal from the preliminary decree was disposed of on 11.3.2004 and the final decree application was filed long thereafter. It is difficult to believe that appellant was unaware of the proceedings and he could not take such steps as are necessary. One shall not omit to note that he was represented by counsel in the suit. May be that the court below was not fully justified in not accepting the medical certificate. The certificate does not inspire confidence in the FAO. 84/2009. 4 mind of the court. 8. In order to ascertain whether the appellant had any substantial grievance to be redressed in the final decree proceedings, records of the final decree proceedings handed over were perused. The main document in the final decree proceedings is the commission report. It is seen that the house in which defendants 1 to 3 were residing and substantial extent of property has been set apart to the appellant and others. On the other hand, it is seen that the plaintiff has been allotted about two cents of property with road frontage. The appellants along with two others have i 8 cents of property set apart to them, which has road frontage on the entire western side. On going through the commission report, it is seen that no injury whatsoever is caused to the appellant and others. The claim of the appellant that if the commission report is accepted, it would divide the residential house into two, does not appear to be correct. It is therefore clear that the grievance of the appellant is imaginary and the contentions of the respondents that the present attempt is nothing but to delay the passing of the final decree seems to be fully justified. One should also note that FAO. 84/2009. 5 the suit is of the year 1993 and sixteen years have elapsed. It is time that the proceeding is given a finality. Considering the above facts and circumstances, it is felt that no interference is called for with the impugned order. The appeal is without merit and it is accordingly dismissed. There will be no order as to costs. P.R. Raman, Judge P. Bhavadasan, Judge sb.