IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 18TH MARCH 2010 / 27TH PHALGUNA 1931 WP(C).No. 33857 of 2009(O) ----------------------------- CMA.18/2009 of D.C. & SESSIONS COURT,KOLLAM .................... PETITIONER(S): ------------------------ 1. NALINI, W/O. LATE RAVEENDRAN, AGED 69 YEARS, MANICHAZHIKAM, PATTATHANAM, KOLLAM. 2. RAMACHANDRAN, S/O. LATE RAVEENDRAN, AGED 47 YEARS, MANICHAZHIKAM, PATTATHANAM, KOLLAM. 3. SUSEELAN, S/O. LATE RAVEENDRAN, AGED 38 YEARS, MANICHAZHIKAM, PATTATHANAM, KOLLAM. BY ADVS.MR.P.GOPAKUMARAN NAIR MR.C.S.DIAS MR.N.K.SUBRAMANIAN RESPONDENT(S): ---------------------------- SUDARSANAN, S/O. LATE RAVEENDRAN, AGED 49 YEARS, MANICHAZHIKAM, SREE NAGAR 35, RAVIPURAM, MUNDAKKAL VILLAGE. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.33857/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PLAINT IN OS. 486/07 OF THE MUNSIFF'S COURT, KOLLAM FILED BY THE RESPONDENT AGAINST THE PETITIONERS DTD. 15.6.07. P2:- COPY OF THE DECREE IN OS.488/07 OF THE ADDL. MUNSIFF'S COURT, KOLLAM DTD. 22.10.2007. P3:- COPY OF THE IA. 965/08 IN OS. 486/07 FILED BY THE PETITIONERS BEFORE THE ADDL. MUNSIFF'S COURT, KOLLAM DTD. 16.2.08. P4:- COPY OF THE IA. NO.966/08 IN OS. 486/07 FILED BY THE PETITIONERS BEFORE THE ADDL. MUNSIFF'S COURT, KOLLAM DTD. 16.2.2008. P5:- COPY OF THE ORDER IN IA. 965/08 IN OS. NO.486/07 OF ADDL. MUNSIFF'S COURT, KOLLAM DTD. 12.8.08. P6:- COPY OF THE ORDER IN IA. NO.190/09 IN CMA. 18/2009 OF THE DISTRICT COURT, KOLLAM DT. 30.6.2009. P7:- COPY OF THE ORDER IN CMA. 18/2009 OF THE DISTRICT COURT, KOLLAM DTD. 30.6.2009. TRUE COPY P.A. TO JUDGE tss P. BHAVADASAN, J -------------------------- W.P.(C).No.33857 OF 2009 -------------------------------------- Dated this the 18th day of March, 2010 J U D G M E N T The petitioners are the defendants in O.S.486/07 before the Munsiff's Court, Kollam. 2. The suit was for partition. The contention of the defendants that there was an earlier partition deed No.4379/96, as per which the plaint A schedule property was allotted jointly to the petitioners 2 and 3 and the respondent herein and B schedule property in the plaint was allotted to Sudharmani. It is pointed out that B schedule property dealt with was partitioned, the details of which are not very relevant for the present purpose. The plaintiff claimed 1/3rd share in A schedule and 1/4th share in B schedule property. 2. The suit was decreed exparte on 22.10.2007. Coming to know about the exparte decree, petitioners filed two applications before the court below one is to set aside the exparte decree and the other is to condone the delay in filing the same. The court below has dismissed the petition to set aside the exparte decree holding that there was no petition for delay condonation. WPC.33857/09 2 3. The petitioners took up the matter in appeal before the District Court, Kollam. There was delay in filing the appeal. A petition to condone delay was also filed. By Ext.P6 order that petition was dismissed and the appeal was also dismissed. 4. It was pointed out by the learned counsel appearing for the petitioners that the observation of the trial court that there was no petition to condone the delay is wrong. A petition had been filed. The learned counsel also pointed out that the appellate court was not justified in dismissing the delay petition without considering the facts of the case and it has caused irreparable injuries to the petitioner. 5. On going through the appellate order it is seen that the grounds laid down for condoning the delay are not very convincing and the reasons given are insufficient to grant relief. 6. Holding so the petition to condone delay was dismissed and consequently appeal was also dismissed. 7. Normally a defendant will not deliberately absent himself from appearing in court and take the risk of having an exparte decree passed against him. The petitioners herein seems to have substantial contentions in the suit. 8. The court below seems to have omitted to note the WPC.33857/09 3 relevant facts and that prejudice and injury are caused to the appellant before it. There is no finding that petitioners are guilty of laches or willful default that they are adopting protracting tactics. 9. It is felt that an opportunity needs to be given to the petitioners herein to put forward their contentions. 10. In the result, the petition is allowed, the impugned order is set aside and also the exparte decree and the suit is restored to file to be disposed of on merits and in accordance with law within a period of six months from the date of receipt of a copy of this judgment. P. BHAVADASAN, JUDGE. sou.