IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 20TH SEPTEMBER 2010 / 29TH BHADRA 1932 CRP.No. 465 of 2010() --------------------- IA NOS.3962 & 3963/2008 IN OS.64/2007 of ADDL.SUB COURT, THALASSERY .................... REVN. PETITIONER(S)/RESPONDENT NO.1/PLAINTIFF: --------------------- M.P.SAINABA, AGED 58 YEARS D/O.ABDUL KADER HAJI, KADEEJA MANZIL, HAJIMOTTA, KANNUR DISTRICT. BY ADV. SRI.C.KHALID SRI.N.GOPINATHA PANICKER SRI.T.P.SAJID RESPONDENT(S)/PETITIONER/DEFENDANTS: --------------- 1. M.P.MARIYUMMA, D/O.AHAMMEDKUTTY HAJI AGED 60 YEARS, NO OCCUPATION,'SUKALA PALACE' HAJIMOTTE, KANHIRODE AMSOM,DESOM, P.O.KANHIRODE KANNUR DISTRICT. 2. M.P.KUNHIMUHAMMED HAJI, S/O.AHAMMEDKUTTY HAJI,TRADER RESIDING AT SHAFIELD, EDAKKAD AMSOM,DESOM, P.O.EDAKKAD, KANNUR DISTRICT. 3. M.P.HASHIM, S/O.AHAMMEDKUTTY HAJI NAFEESA MANZIL, KANJIRODE AMSOM THALAMUNDA DESOM,KANNUR DISTRICT. 4. M.P.RASEENA, D/O.KALENDAN, RESIDING RASEENAS, MAYAMUKKU, KANJIRODE AMSOM, DESOM KANNUR DISTRICT. 5. M.P.SAKEENA, D/O.KALANDAN, NAFEESA MANZIL, KOTTENCHERRY, P.O.KANHIRODE KANNUR DISTRICT. 6. M.P.KADEEJA, D/O.KALANDAN, 'KADEEJAS' MAYAMUKKU, KANJIRODE AMSOM, DESOM, KANNUR DISTRICT CRP NO.465/2010 2 7. M.P.SHAMEER, S/O.KALANDAN TRADER NAFEESA MANZIL,KOTTANCHERRY,KANJIRODE KANNUR DISTRICT. 8. M.P.NASNEE, D/O.KALANDAN DO..DO.. 9. SHAKEER M.P, S/O.KALANDAN DO..DO.. 10. P.C.P.AYISHA ,W/O.ABDULLA AYISHA VILLA, OPP R.T.OFFICE C.N.- 2 11. P.C.P.JAFAIS, D/O.ABDULLA, DO..DO.. 12. P.C.P.JUNAID, S/O.ABDULLA, DO..DO.. 13. P.C.P.JURAID,S/O.ABDULLA, DO..DO.. 14. P.C.P.JUBAIRIYA, S/O.ABDULLA, DO..DO.. 15. P.C.P.JUSHAD, S/O.ABDULLA, DO..DO.. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- C.R.P.No.465 of 2010 -------------------------------------- Dated this the 20th day of September, 2010. ORDER Plaintiff in O.S.No.64 of 2007 of the court of learned Additional Sub Judge, Thalassery is the petitioner before me challenging the order dated June 10, 2010 on I.A.Nos.3962 of 2008 and 3963 of 2008 condoning the delay of 316 days and allowing the application to set aside exparte decree, filed by respondent No.1. O.S.No.64 of 2007 is a suit for partition of 1.17.75 acres and building thereon. Respondents filed written statement. There was an exparte preliminary decree for partition passed on 20.11.2007. After 316 days respondent No.1 filed I.A.Nos.3962 of 2008 and 3963 of 2008 as aforesaid. Still, respondent No.2 onwards remained exparte. Respondent No.1 gave evidence as PW1 and proved Exts.A1 to A3. Learned Sub Judge allowed the applications and set aside the exparte decree as against all the respondents which is under challenge. It is contended by learned counsel that on the facts and evidence on record learned Sub Judge ought not to have condoned the delay. It is also contended that at any rate, in so far as there was no application by respondents No.2 onwards learned Munsiff ought not to have set aside the exparte preliminary decree as against those respondents. 2. The case set up by respondent No.1 to condone the delay and to set aside the exparte preliminary decree is that she had entrusted the matter to her brother, Hashim to contest the case but he did not do so. In the meantime, CRP No.465/2010 2 she had gone to Pune to stay with her son working there for treatment there. She could not give instruction to her counsel to file written statement. Respondent No.1 produced Exts.A1 to A3 to show that she was suffering various illness and underwent treatment for the same. Respondent No.1 gave evidence to that effect as PW1. Learned Munsiff was impressed by the reason stated by respondent No.1 but found that there was some latches on the part of respondent No.1 which could be corrected by the common curative of cost. Accordingly the application was allowed on payment of cost of Rs.1,000/-. 3. Brooding spirit of justice requires that every party must be given opportunity to be heard unless there is contumacious negligence or laches on the part of such party. In the present case learned Munsiff was inclined to find that circumstances justify absence of respondent No.1 in court on the relevant day and that she must be given an opportunity to contest the case. I must bear in mind that this is a suit for partition. Having regard to these aspects and on the evidence on record coupled with the fact that petitioner did not adduce contra evidence to controvert what respondent No.1 has stated and proved through her evidence as PW1 and Exts.A1 to A3, I do not find any infirmity in the learned Munsiff taking the view that delay is required to be condoned and exparte decree against respondent No.1 be set aside. 4. Then the next question is whether in the absence of respondent No.2 onwards the exparte decree against them should have been set aside. Proviso to Rule 13 of Order IX of the Code of Civil Procedure says that where CRP No.465/2010 3 the decree is of such a nature that it cannot be set aside as against the defendant seeking to set aside the exparte decree only, it may be set aside as against all or any of the other defendants also. Therefore, if the decree is of such a nature that it cannot be set aside against one of the respondents alone, mere fact that respondent No.2 onwards did not apply to set aside the decree does not prevent the court from setting aside the decree as against all the respondents. The suit is one for partition. Respondents, it is not disputed have a joint right in the property. If there happens to be a preliminary decree for partition against respondent No.2 onwards and respondent No.1 is able to sustain her claim there is a possibility of divergent decisions being entered on the same issue. Though not stated by learned Munsiff in so many words that could be the reason why the exparte decree was set aside against all the respondents which I find on the facts and circumstances is not illegal or irregular. As such no interference is required with the order under challenge. Revision Petition is dismissed. But learned Munsiff is directed to expedite trial and disposal of the suit. I.A.No.2186 of 2010 will stand dismissed. THOMAS P.JOSEPH, Judge. cks