IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 465 of 2010()
1. M.P.SAINABA, AGED 58 YEARS
... Petitioner
Vs
1. M.P.MARIYUMMA, D/O.AHAMMEDKUTTY HAJI
... Respondent
2. M.P.KUNHIMUHAMMED HAJI,
3. M.P.HASHIM, S/O.AHAMMEDKUTTY HAJI
4. M.P.RASEENA, D/O.KALENDAN, RESIDING
5. M.P.SAKEENA, D/O.KALANDAN, NAFEESA
6. M.P.KADEEJA, D/O.KALANDAN, KADEEJAS
7. M.P.SHAMEER, S/O.KALANDAN TRADER
8. M.P.NASNEE, D/O.KALANDAN DO..DO..
9. SHAKEER M.P, S/O.KALANDAN
10. P.C.P.AYISHA ,W/O.ABDULLA
11. P.C.P.JAFAIS, D/O.ABDULLA,
12. P.C.P.JUNAID, S/O.ABDULLA,
13. P.C.P.JURAID,S/O.ABDULLA,
14. P.C.P.JUBAIRIYA, S/O.ABDULLA,
15. P.C.P.JUSHAD, S/O.ABDULLA,
For Petitioner :SRI.C.KHALID
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :20/09/2010
O R D E R
THOMAS P. JOSEPH, J.
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C.R.P.No.465 of 2010
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Dated this the 20th day of September, 2010.
ORDER
Plaintiff in O.S.No.64 of 2007 of the court of learned Additional Sub
Judge, Thalassery is the petitioner before me challenging the order dated June
10, 2010 on I.A.Nos.3962 of 2008 and 3963 of 2008 condoning the delay of
316 days and allowing the application to set aside exparte decree, filed by
respondent No.1. O.S.No.64 of 2007 is a suit for partition of 1.17.75 acres and
building thereon. Respondents filed written statement. There was an exparte
preliminary decree for partition passed on 20.11.2007. After 316 days
respondent No.1 filed I.A.Nos.3962 of 2008 and 3963 of 2008 as aforesaid. Still,
respondent No.2 onwards remained exparte. Respondent No.1 gave evidence
as PW1 and proved Exts.A1 to A3. Learned Sub Judge allowed the applications
and set aside the exparte decree as against all the respondents which is under
challenge. It is contended by learned counsel that on the facts and evidence on
record learned Sub Judge ought not to have condoned the delay. It is also
contended that at any rate, in so far as there was no application by respondents
No.2 onwards learned Munsiff ought not to have set aside the exparte
preliminary decree as against those respondents.
2. The case set up by respondent No.1 to condone the delay and to
set aside the exparte preliminary decree is that she had entrusted the matter to
her brother, Hashim to contest the case but he did not do so. In the meantime,
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she had gone to Pune to stay with her son working there for treatment there.
She could not give instruction to her counsel to file written statement.
Respondent No.1 produced Exts.A1 to A3 to show that she was suffering
various illness and underwent treatment for the same. Respondent No.1 gave
evidence to that effect as PW1. Learned Munsiff was impressed by the reason
stated by respondent No.1 but found that there was some latches on the part of
respondent No.1 which could be corrected by the common curative of cost.
Accordingly the application was allowed on payment of cost of Rs.1,000/-.
3. Brooding spirit of justice requires that every party must be given
opportunity to be heard unless there is contumacious negligence or laches on
the part of such party. In the present case learned Munsiff was inclined to find
that circumstances justify absence of respondent No.1 in court on the relevant
day and that she must be given an opportunity to contest the case. I must bear
in mind that this is a suit for partition. Having regard to these aspects and on
the evidence on record coupled with the fact that petitioner did not adduce contra
evidence to controvert what respondent No.1 has stated and proved through her
evidence as PW1 and Exts.A1 to A3, I do not find any infirmity in the learned
Munsiff taking the view that delay is required to be condoned and exparte decree
against respondent No.1 be set aside.
4. Then the next question is whether in the absence of respondent
No.2 onwards the exparte decree against them should have been set aside.
Proviso to Rule 13 of Order IX of the Code of Civil Procedure says that where
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the decree is of such a nature that it cannot be set aside as against the
defendant seeking to set aside the exparte decree only, it may be set aside as
against all or any of the other defendants also. Therefore, if the decree is of
such a nature that it cannot be set aside against one of the respondents alone,
mere fact that respondent No.2 onwards did not apply to set aside the decree
does not prevent the court from setting aside the decree as against all the
respondents. The suit is one for partition. Respondents, it is not disputed have
a joint right in the property. If there happens to be a preliminary decree for
partition against respondent No.2 onwards and respondent No.1 is able to
sustain her claim there is a possibility of divergent decisions being entered on
the same issue. Though not stated by learned Munsiff in so many words that
could be the reason why the exparte decree was set aside against all the
respondents which I find on the facts and circumstances is not illegal or irregular.
As such no interference is required with the order under challenge.
Revision Petition is dismissed. But learned Munsiff is directed to expedite
trial and disposal of the suit.
I.A.No.2186 of 2010 will stand dismissed.
THOMAS P.JOSEPH,
Judge.
cks