IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 18TH JULY 2008 / 27TH ASHADHA 1930 CRP.No. 1060 of 2002() ---------------------- CMA.114/1996 of DISTRICT COURT,THIRUVANANTHAPURAM OS.320/1990 of III ADDL.MUNSIFF COURT, THIRUVANANTHAPURAM REVN. PETITIONER: CM APPELANTS/PETITIONERS ------------------------------------------ 1. KRISHNAMMA, W/O.LATE V.SUKUMARAN, PLAVILA VEEDU, MEDICAL COLLEGE ULLOOR, THIRUVANANTHAPURAM. 2. S.SANTHOSH, S/O.LATE V.SUKUMARAN OF DO. 3. PAVANA, D/O.LATE V.SUKUMARAN, DO.DO. 4. SATHI, D/O.LATE V.SUKUMARAN, DO.DO. POWER OF ATTORNEY HOLDER SRI.PAVANA, PETITIONER NO.3 BY ADVS. SRI.RAM MOHAN.G. SRI.G.P.SHINOD SRI.MANU V. RESPONDENTS: RESPONDENTS/COUNTER PETITIONERS. --------------------------------------------- 1. G.GOPALAKRISHNAN, PUTHANVILAKATHU VEEDU, MADATHUVILAKAM VILLAGE, THIRUVANANTHAPURAM. 2. VELAYUDHAN THULASEDHARAN, PLAVILA VEEDU, MEDICAL COLLEGE, ULLOOR, THIRUVANANTHAPURAM.(DELETED) 3. V.SADANANDAN, OF DO.DO. 4. V.RADHAKRISHNAN OF DO.DO. (RESPONDENT NO. 2 IS DELETED FROM THE PARTY ARRAY AS FPER ORDER DATED 01/03/06 BY ADV. SRI.G.S.REGHUNATH -R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/72008 ALONG WITH WPC NO. 9215 OF 2005, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. -------------------------------------------- C.R.P. NO. 1060 OF 2002 & W.P.(C)9215 OF 2005 -------------------------------------------- Dated this the 18th day of July, 2008 O R D E R The revision petitioners are defendants 4 to 7 in O.S. No.320 of 1990 on the file of the III Additional Munsiff's Court, Thiruvananthapuram. The suit was filed by the plaintiff/first respondent herein for redemption of mortgage. The revision petitioners are residing in the building. Defendants 1 to 3 are the co-mortgagees and the revision petitioners are the legal heirs of the deceased 4th defendant who is the brother of defendants 1 to 3. The suit was decreed ex pare on 13.1.1992. Defendants 4 to 7 filed I.A. No.4029 of 1992 for setting aside the ex parte decree. The trial court dismissed the said application. The order of the trial court was confirmed by the lower appellate court in C.M.A. No.114 of 1996. Challenging the orders of the courts below, defendants 4 to 7 have filed the above revision. C.R.P. NO.1060/2002 W.P.(C)NO.9215/2005 2 2. The brief facts necessary for deciding the matter are as follows: It is the case of the revision petitioners that they along with the other defendants gave vakalath to an Advocate . The first defendant was conducting the case on behalf of all the defendants. According to the revision petitioners/defendants 4 to 7, the first defendant obtained their signature in the written statement prepared by the Advocate. But subsequently, defendants 1 to 3 colluded with the plaintiff and the first defendant did not file the written statement and hence the case was decided ex parte on 13.1.1992. It is also submitted that a connected case, O.S. No.1062 of 1980 for redemption of mortgage was pending at that time before the Munsiff's Court, Thiruvananthapuram and that only when they received notice from the Land Tribunal on 22.3.1992 in R.C. No.2 of 1991 did they come to know about an ex parte decree passed in O.S. No.320 1990. It is also contended that they have many valid contentions to be agitated. According to the revision petitioners, they have kudikidappu right of the property in question, but there was no occasion for the court to consider the said claim including their right to claim value of improvements. 3. The first respondent herein who is the plaintiff in O.S. No.320 of C.R.P. NO.1060/2002 W.P.(C)NO.9215/2005 3 1990 resisted the contentions of the revision petitioners. It is contended by him that though there were several postings for filing written statement, the revision petitioners did not avail of the opportunity and that the court below passed the ex parte decree only due to the non appearance of the revision petitioners and the failure on their part to file the written statement. He further contended that the case of the revision petitioners that they entrusted the written statement with him and that he and defendants 2 and 3 in collusion with the plaintiff deliberately abstained form filing the written statement is not correct. 4. I have enquired as to whether anybody contested the matter and it is submitted at the Bar that the court below passed the order setting all the defendants ex parte. It is very clear that the decision in the suit is not a decision on the merits of the case. In the application filed for setting aside the ex parte order, one of the revision petitioners was examined as PW.1 and Exts.A1 to A3 were marked. It is the case of the revision petitioners that the decree was obtained by fraud. The trial court held that if the decree was obtained fraudulently, the same cannot be set aside in a proceeding under Order IX Rule 13 C.P.C. The trial court also held that the only course open to the petitioners for setting aside the decree is to file C.R.P. NO.1060/2002 W.P.(C)NO.9215/2005 4 a fresh suit. The lower appellate court also confirmed the order passed by the trial court. 5. I have gone through the averments of the petitioner in I.A. No.4029 of 1992. According to them, the first defendant who is none other than the first petitioner's brother-in-law had cheated them which resulted in the passing of the ex parte decree. According to the petitioners, they were under the impression that the case was being contested by the other defendants as well and that the first defendant had filed the signed written statement for presentation before the court and that they came to know of the ex parte decree only when they received notice in the connected suit. What is alleged by the petitioners is that the first defendant had colluded with the plaintiff in the suit and deliberately abstained from filing the written statement. The revision petitioners have not put forward a case that the decree passed in the case is a decree fraudulently passed. Their only case is that due to the fraud committed by the first defendant, they could not file the written statement in time and thus could not contest the case. 6. Considering the facts and circumstances of the case, I am of the C.R.P. NO.1060/2002 W.P.(C)NO.9215/2005 5 view that the reasons stated for not contesting the suit are satisfactory. The courts below have misunderstood the scope of the pleadings of the petitioners and entered a finding that since it is a fraudulent decree, the remedy is to file a fresh suit. The petitioners only contended that due to the fraudulent character of the first defendant, they could not contest the case on merits. The circumstances stated in the affidavit filed in support of the petition for setting aside the ex parte decree are circumstances leading to the passing of ex parte decree. The court below did not approach the matter on the right angle. The contention of the petitioners was mistakenly taken as a contention levelled against the decree as being a fraudulent one. Since the matter ended in an ex parte decree and since the revision petitioners have sufficient cause for not contesting the matter, I am of the view that I.A. No.4029 of 1992 ought to have been allowed by the court below. The order under challenge is, therefore, set aside. I.A. No.4029 of 1992 is allowed. The trial court is directed to dispose of the case on merits after affording an opportunity to the revision petitioners/defendants 4 to 7 to contest the case by adducing evidence. The parties shall appear before the court below on 12.8.2008. The trial court shall dispose of the matter within a period of six months from the date of appearance of the parties. C.R.P. NO.1060/2002 W.P.(C)NO.9215/2005 6 The Civil Revision Petition is allowed. In the light of the order passed in the revision, no further orders are necessary in W.P.(C)No.9215 of 2005 and the same is disposed of accordingly. There will be no order as to costs. (HARUN-UL-RASHID, JUDGE) sp/ C.R.P. NO.1060/2002 W.P.(C)NO.9215/2005 7 HAURN-UL-RASHID, J. C.R.P. NO. 1060/2002 & W.P.(C)NO.9216/2005 O R D E R 7th July, 2008 C.R.P. NO.1060/2002 W.P.(C)NO.9215/2005 8