IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 19TH JULY 2011 / 28TH ASHADHA 1933 CRP.NO. 239 OF 2011() --------------------------------- I.A. NOS.2607 AND 2609 OF 2010 IN OS.24/2005 OF ADDITIONAL SUB COURT, PALAKKAD .................... REVN. PETITIONER(S): PETITIONERS/RESPONDENTS 1 & 2 ------------------------------------------------------------------------------------ 1. RAMACHANDRAN, VALIYAVEED, THEKKEPAVADI, KOLLENGODE, CHITTUR TALUK. 2. R.KRISHNAKUMAR, S/O.RAMACHANDRAN, VALIYAVEED, THEKKEPAVADI, KOLLENGODE, CHITTUR TALUK. BY ADV. SRI.BINOY VASUDEVAN SRI.R.MANIKANTAN RESPONDENT(S): PETITIONER & RESPONDENTS 3 TO 8 ------------------------------------------------------------------------------ 1. VISALAKSHI, W/O.T.P.NATESAN, NO.4, VEERA RAGHAVA MUTHALIYAR STREET, TIRUCHAMKODE P.O., NAMAKKAL DISTRICT, TAMILNADU. 2. RAJAGOPAL, S/O.SIVARAMAMUDALIYAR, NO.43, 7TH EAST MAIN ROAD, GANDHI NAGAR, KATPADI, TAMILNADU. 3. SABARI RAJAN, S/O. RAJAGOPAL, 1552/10, CLASIC GARDEN, TRICHY ROAD, COIMBATORE. 4. VIJAYAMURUKAN, S/O.SIVARAMAMUDALIYAR, VALIYAVEED, THEKKEPAVADI, KOLLENGODE, CHITTUR TALUK. 5. SUNDARARAJAN, S/O.SIVARAMAMUDALIYAR, VALIYAVEED, THEKKEPAVADI, KOLLENGODE, CHITTUR TALUK. 6. RAVISANKAR, S/O.SUNDARARAJAN, BRIGHT MARKETING, 212, K.R.COMPLEX, P.N.ROAD, METTUPALAYAM, THIRUPUR. 7. SENTHILKUMAR, S/O.SUNDARARAJAN, BRIGHT ELECTRONICS, NO.2, MESTANTS STREET, THIRUPUR. THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.R.P NO.239 OF 2011 APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- CERTIFIED COPY OF THE ORDER DATED 8.3.2011 IN I.A. NO.2607 OF 2010 IN O.S. NO.24 OF 2005 PASSED BY THE SUBORDINATE JUDGE (ADDITIONAL) PALAKKAD. CERTIFIED COPY OF THE ORDER DATED 8.3.2011 IN I.A. NO.2609 OF 2010 IN O.S. NO.24 OF 2005 PASSED BY THE SUBORDINATE JUDGE (ADDITIONAL) PALAKKAD. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY P.S. TO JUDGE0 THOMAS P.JOSEPH, J. ==================================== C.R.P. No.239 of 2011 ==================================== Dated this the 19th day of July, 2011 O R D E R Notice issued to first respondent was returned and thereon notice was served on his counsel in the trial court. As per order on I.A. No.1560 of 2011 dated 19.07.2011 service of notice on counsel for first respondent is declared as sufficient. 2. This Revision Petition is in challenge of orders dated 08.03.2010 on I.A. Nos.2607 and 2609 of 2010 in O.S. No.24 of 2005 of the court of learned Additional Sub Judge, Palakkad. That is a suit for partition filed by petitioners. All the respondents remained ex parte and that was followed by a preliminary decree and then, a final decree. After passing of the final decree the first respondent filed the above said applications to set aside preliminary decree and condone delay of 648 days in filing the said application. Petitioners filed objection to the said applications. Learned Additional Sub Judge allowed the said applications as per impugned orders which are under challenge. Learned counsel submitted that it is without assigning any reason that the applications were allowed. C.R.P. No.239 of 2011 -: 2 :- 3. I have gone through the orders under challenge. On I.A. No.2607 of 2009 filed under Section 5 of the Limitation Act (for short “the Act”) learned Sub Judge observed that that application is allowed vide order in I.A. No.2609 of 2010. On I.A. No.2609 of 2010 the order is, “Heard both sides. Allowed on cost of Rs.4,000/- (Four thousand only). Payment on 22.03.2011”. 4. Learned Sub Judge has not gone into the question whether first respondent has shown sufficient explanation for condonation of delay. The Supreme Court in Ram Lal v. Rewa Coalfields Ltd. (AIR 1962 SC 361) and Balwant Singh (Dead) v. Jagadish Singh and Others ([2010] 8 SCC 685) has held, and Sec.5 of the Act also says that the discretionary jurisdiction of the court to condone delay would arise only when the party has shown sufficient cause. In other words, proof of sufficient cause is a condition precedent for the court to exercise its discretionary jurisdiction. 5. In the present case learned Additional Sub Judge has not stated any reason for allowing the application to condone the delay. No enquiry is conducted in the matter and no finding is entered whether first respondent had sufficient cause in not filing the application to set aside the preliminary decree on time. C.R.P. No.239 of 2011 -: 3 :- Orders under challenge suffer from an illegality and therefore are liable to be interfered. I do so. Resultantly, Civil Revision Petition is allowed. Impugned orders on I.A. Nos.2607 and 2609 of 2010 in O.S. No.24 of 2005 of the court of learned Additional Sub Judge, Palakkad are set aside and those applications are remitted to the learned Sub Judge for fresh decision in the light of the observations made above, after giving opportunity to parties to adduce evidence in support of their respective contentions. Learned Sub Judge shall expedite the proceedings on the said applications. All pending Interlocutory Applications will stand dismissed. THOMAS P. JOSEPH, JUDGE. vsv