IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 29TH SEPTEMBER 2009 / 7TH ASWINA 1931 WP(C).No. 11544 of 2009(O) --------------------------------------- AGAINST THE ORDER DATED 05/12/2008 IN I.A. 1815/07 IN OS.38/1996 of MUNSIFF COURT, PUNALUR .................... PETITIONER/PETITIONER/2ND PLAINTIFF: ------------------------------------------------------------ SARAMMA, AGED 68, D/O.MARIYAMMA, KATTUVILA VEEDU, MANCHALLOOR MURI, PATHANAPURAM MURI, PATHANAPURAM VILLAGE. BY ADV. MR.P.HARIDAS RESPONDENTS/RESPONDENTS/1ST PLAINTIFF/DEFENDANTS 1 TO 6: ---------------------------------------------------------------------------------------------------- 1. SAMUEL, CHEENIVILA VEEDU, MANJAKKALA MURI, THALAVOOR VILLAGE, PATHANAPURAM TALUK. 2. LUKKOSE, CHARUVILA VEEDU, MANJAKKALA MURI, THALAVOOR VILLAGE. 3. MARYKUTTY, PARAVILA VEEDU, KULAKKADA, PERUMKULAM VILLAGE, KOTTARAKKARA TALUK FROM CHARUVILA VEEDU. 4. GRACY, CHARUVILA VEEDU, THALAVOOR VILLAGE. 5. THEEMATHIYOS, CHARUVILA VEEDU, THALAVOOR VILLAGE. 6. LALAN, CHARUVILA VEEDU, THALAVOOR VILLAGE. 7. JAINAMMA, CHEENIVILE VEEDU, VADAKKEKKARA KADAMBATTU VAYALIL, THALAVOOR VILLAGE. BY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 11544/2009-O APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN O.S. NO.38/1996. EXT.P2: COPY OF THE PRELIMINARY DECREE DATED 4TH JULY, 2003. EXT.P3: COPY OF THE PETITION IN I.A. NO.1815 OF 2007. EXT.P4: COPY OF THE ORDER DATED 05/12/2008 IN I.A. NO.1815 OF 2007 IN O.S. NO.38 OF 1996 FILED BEFORE THE MUNSIFF'S COURT, PUNALUR. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.11544 OF 2009 -------------------------- Dated this the 29th day of September 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Issue appropriate writ order or direction, calling for records pertaining to Ext.P4 and may set aside Ext.P4. ii) Such appropriate reliefs this Hon'ble Court seems fit and necessary in the circumstances. 2. Petitioner is one among the two plaintiffs in a suit for partition numbered as O.S No.38 of 1996 on the file of the Munsiff Court, Punalur. The other plaintiff is the brother of the petitioner who according to her was conducting the case on her behalf as well. Without notice to her, according to the petitioner, the other plaintiff, W.P.(C).No.11544 OF 2009 Page numbers her brother, fraudulently entered into a compromise with the defendants and her signature was also forged in the compromise petition. After a preliminary decree was passed on the basis of that compromise, she filed two applications before the court for setting aside the preliminary decree alleging that it was vitiated by fraud practised by the coplaintiff and the defendants in filing of the compromise petition. The learned Munsiff dismissed that application vide Ext.P4 order. Propriety and correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. Notice was given to the respondents, but none of them entered appearance. Petitioner was ordered to serve notice on the counsel appearing for the respondents in the court below W.P.(C).No.11544 OF 2009 Page numbers and a memo has been filed evidencing service of such notice on the respondents. Still none of them turned up. I heard the learned counsel for the petitioner. Perusing Ext.P4 order, I find the learned Munsiff dismissed the application for the reason that no petition for condoning the delay was filed in moving Ext.P3 application by the petitioner. It was also noticed that Ext.P3 application filed by the petitioner under Order 23 Rule 3 proviso R/w 151 of the Code of Civil Procedure. That proviso of course is not applicable to the facts of the case. But the larger question, whether a petition for condoning delay has to be filed for the relief claimed by the petitioner, it appears, has not been gone into by the court below. The case of the petition was that a fraud was practised not only on her but on the court as well in filing of a compromise petition by her brother, coplaintiff, forging her signature. W.P.(C).No.11544 OF 2009 Page numbers When such a serious allegation is raised, it is not proper to dismiss an application for the reason that it is barred by limitation or on the ground that a wrong provision was quoted. The question is whether within a reasonable time from the date of knowledge had she moved the application alleging that a decree had been obtained practising fraud on the court. In such a case a petition to condone delay cannot be insisted upon. Whatever that be, in the given facts of the case, the court below should have given an opportunity to the petitioner to examine herself and then dispose of her petition on its merits in accordance with law. Needless to point out the enquiry on her petition shall be proceeded with notice to the opposite parties. Ext.P4 order is set aside directing the court below to reconsider Ext.P3 application taking note of the observations made above and in accordance with law. Court below is further directed to dispose Ext.P3 W.P.(C).No.11544 OF 2009 Page numbers application within six weeks from the date of receipt of a copy of this judgment and till then passing of the final decree shall be kept in abeyance. I make it clear that I have not expressed any view or opinion on the merits or entertainability of the case canvassed by the petitioner, other than that she should be extended an opportunity to present her case and its disposal by the court in accordance with law. Writ petition is disposed as indicated above. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv W.P.(C).No.11544 OF 2009 Page numbers