IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 29TH JULY 2008 / 7TH SRAVANA 1930 WP(C).No. 29417 of 2007(B) -------------------------- CMA.97/2006 of II ADDL. DISTRICT COURT, TRIVANDRUM OS.1094/1994 of II ADDL.MUNSIFF'S COURT,TRIVANDRUM .................... PETITIONER: -------------------- PRASANNAKUMARI, D/O LEKSHMIKUTTI AMMA, KULAVARAMBU PUTHEN VEEDU, VAYALARIKAM, ULLOOR GARDENS, ULLOOR VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.J.HARIKUMAR SRI.HARIKUMAR.S. RESPONDENTS: ------------------------- 1. C.S.SUKUMARAN NAIR, T.C.29/1385, CHERIYA UDDESWARAM, PALKULANGARA, PETTA VILLAGE, THIRUVANANTHAPURAM. 2. L.V.SAVITHRI AMMA, M.P.MANDIRAM, CHUNDU VILA LANE, PEROORKADA, THIRUVANANTHAPURAM. 3. INDIRA DEVI, ELANJIMUTTATHU VEEDU, AYIROORPARA, THIRUVANANTHAPURAM. BY ADV. SRI.P.GOPALAKRISHNAN NAIR - R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.29417/2007 B APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN O.S.NO.1094/1994 ON THE FILE OF THE 2ND ADDITIONAL MUNSIFF'S COURT, THIRUVANANTHAPURAM. EXT.P2: COPY OF THE TAX RECEIPT DTD. 10/12/2004 OF ULLOOR VILLAGE. EXT.P3: COPY OF I.A.NO.7592 OF 2005 IN O.S.NO.1094 OF 1994 DTD. 30/07/2005. EXT.P4: COPY OF THE DECREE IN O.S.NO.1094 OF 1994 DTD. 11/01/2002. EXT.P5: COPY OF THE COMMISSION REPORT DTD. 14/12/2001. EXT.P6: COPY OF THE ORDER IN I.A.NO.7592 OF 2005 DTD.5/10/2006 OF THE 2ND ADDITIONAL MUNSIFF'S COURT, THIRUVANANTHAPURAM. EXT.P7: COPY OF THE CMA NO.97/2006 BEFORE THE DISTRICT COURT, THIRUVANANTHAPURAM. EXT.P8: COPY OF ORDER DTD. 10/09/2007 IN CMA NO.97/2006 BEFORE THE DISTRICT COURT, THIRUVANANTHAPURAM. RESPONDENT'S EXHIBITS: EXT.R1(A): COPY OF THE B.DIARY IN O.S.NO.1094/94. EXT.R1(B): COPY OF THE PARTITION DEED DTD. 30/01/956 OF THE SRO, PATTOM. EXT.R1(C): COPY OF THE DOCUMENT NO.37/1989 DTD. 5/1/1989. EXT.R1(D): COPY OF THE RELEASE DEED NO.5374/1993 DTD. 28/12/1993. EXT.R1(E): COPY OF THE LETTER FROM THE VILLAGE OFFICER, ULLOOR TO THE 1ST RESPONDENT DTD. 25/02/2008. /TRUE COPY/ P.S.TO JUDGE Kss M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NO.29417 OF 2007 =========================== Dated this the day of 2007 JUDGMENT Petitioner is the 4th defendant and first respondent is the third plaintiff in O.S.1094/1994 on the file of Munsiff Court, Thiruvananthapuram. Plaintiffs 1 and 2 are no more. It is submitted by both the petitioner and first respondent that there are no other legal heirs for plaintiffs 1 and 2 to be impleaded. Ext.P4 decree was passed on 11.1.2002 declaring right of plaintiffs to plaint A schedule property. A mandatory injunction directing defendants to demolish the unauthorised construction made in plaint A schedule property and recovery of possession of plaint A schedule property after removing the unauthorised construction were also granted. Defendants were also restrained from trespassing into plaint A schedule property or destroying the boundary. Plaintiffs were also allowed to put up compound W.P.(C) 29417/07 2 wall using granite and bricks on the western side of plaint A schedule property. It was an ex parte decree. All the defendants were set ex parte. Petitioner filed Ext.P3 petition to set aside the ex parte decree as against her under Rule 13 of Order IX of Code of Civil Procedure after condoning the delay of three years five months and thirteen days in filing the application. According to petitioner, after she received summons in the suit, she entrusted it to her mother first defendant to contest the suit and her mother engaged Advocate Parameswara Kaimal and because of the affinity of first defendant towards first respondent she did not contest the case and petitioner was unaware of that fact and she came to know about the decree only on receiving notice in the execution petition and therefore the delay is to be condoned and ex parte decree is to be set aside. 2. Learned Munsiff under Ext.P6 order dismissed the application. Petitioner challenged that order W.P.(C) 29417/07 3 before District Court in CMA 97/2006. Under Ext.P8 order the appeal was dismissed. Petitioner has filed this petition under Article 227 of Constitution of India challenging Exts.P6 and P8 orders. 3. Learned counsel appearing for petitioner and first respondent were heard. 4. Learned counsel appearing for petitioner argued that after receipt of the summons petitioner entrusted her mother the co-defendant to contest the case and petitioner was under the belief that mother is contesting the case and only on receipt of the notice in the execution petition, she came to know that suit was decreed ex parte. She therefore contended that the ex parte decree is to be set aside after condoning the delay. Learned counsel argued that after Ext.P4 decree first respondent filed I.A.20/2002 on 1.1.2002, an application under Rule 17 of Order VI of Code of Civil Procedure to amend the plaint substituting item No.2 of the plaint schedule property from 0.5 W.P.(C) 29417/07 4 cents to 1.66 cents and no notice was served on the petitioner in the application for amendment and therefore learned Munsiff was not justified in granting an ex parte decree in respect of additional extent so amended. 5. Learned counsel appearing for first respondent argued that petitioner had filed a vakalath in the suit and did not file a written statement or contest the case and after the decree in the execution petition filed by first respondent notice was served on the petitioner on 24.8.2003 and Ext.P3 petition was filed only on 30.7.2005 and therefore in any case the delay cannot be condoned. Learned counsel argued that even if it is found that plaint was amended after the petitioner was ex parte and notice was not served on her, the decree cannot be set aside. 6. Though Ext.P4 is an ex parte decree, petitioner is not entitled to file a petition to set aside the ex parte decree after a delay of more than three years without showing sufficient cause W.P.(C) 29417/07 5 to condone the delay of three years five months and thirteen days in filing the application. Ext.R1(a) copy of B Diary shows that petitioner and first defendant had appeared and the suit was posted for their written statement, and as they did not file written statement they were set ex parte on 17.10.1996. It is thereafter an application for appointment of a Commission was filed, a Commissioner was appointed. Subsequently other defendants were also set ex parte. Ultimately suit was posted for evidence. Then first respondent filed I.A.20/2002 to amend the plaint which was allowed on 2.1.2002. Later the suit was decreed ex parte on 11.1.2002. When the records establish that petitioner was set ex parte as early as 17.10.1996 and that too after a vakalath was filed on her behalf earlier petitioner has to explain the delay in filing the petition from that date. What is contended by petitioner is only that she entrusted the matter with her mother who colluded with first respondent plaintiff and allowed first W.P.(C) 29417/07 6 respondent to obtain an ex parte decree and petitioner came to know about the decree only on getting notice in the execution petition. As found by the courts below, notice in the execution petition was served on the petitioner in August, 2003 itself. But the petition to condone the delay and to set aside the ex parte decree was filed only in July, 2005. That inordinate delay cannot be condoned on the flimsy grounds shown by the petitioner. 7. Learned counsel appearing for petitioner argued that when petitioner was set ex parte item No.2 of the plaint schedule property was only one half cent which was subsequently got amended and decree is now in respect of 1.66 cents. It was argued that decree holder is only entitled to the property allotted as D schedule of Ext.R1(b) partition deed and by executing the ex parte decree petitioner is not entitled to take more than what he is entitled to under the partition deed and before granting a decree an opportunity should W.P.(C) 29417/07 7 be granted to the petitioner to get the property properly identified. 8. On going through the orders passed by the court below, I do not find any reason to interfere with the refusal to set aside the ex parte decree or to condone the inordinate delay. But considering the submission made by the petitioner that item No.2 of the decree schedule property, as it now stands is the result of an amendment made subsequent to setting petitioner ex parte in the suit and without notice to the petitioner, interest of justice will be served if the executing court is directed to identify D and E schedule properties allotted to the first respondent and petitioner respectively under Ext.R1(b) partition deed. Executing court shall appoint a Commission to identify D and E properties as provided under the partition deed and deliver the property covered under D schedule to the decree holder who is also entitled to get demolished any unauthorised construction within the D schedule property W.P.(C) 29417/07 8 therein. Executing court shall dispose the petition as expeditiously as possible. Writ Petition is disposed of as above. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006