IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 242 of 2010()
1. NAZEER, AGED 41, S/O. HAMEED,
... Petitioner
2. NAVAS, AGED 39
Vs
1. RAZIA, AGED 35 YEARS,
... Respondent
For Petitioner :SRI.K.S.SAJEEV KUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :24/09/2010
O R D E R
THOTTATHIL.B.RADHAKRISHNAN & P.BHAVADASAN, JJ.
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FAO No.242 of 2010
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Dated 24th September 2010
Judgment
Thottathil.B.Radhakrishnan, J.
This appeal is filed against an order, refusing to
set aside an ex parte preliminary decree in a suit for
partition and also dismissing the application for
condonation of delay in filing the said application. The sole
plaintiff is the sister of the two defendants. She has sued
on the premise that the suit properties belonged to a large
extent, to their father, except an item, in which, she
conceded that the father had only 1/3rd share, the
remaining 2/3rd share, being with the brothers.
2. The defendants sought to set aside the ex
parte decree and also sought condonation of delay in
applying to set aside the ex parte decree, with applications
supported by the affidavit of the first defendant. They set
out their defence to the suit in the affidavit and pleaded
that the second defendant was an alcoholic and was under
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the influence of drugs (narcotics) and that he was under
treatment for a considerable length of time for substance
abuse. The second defendant is not educated and that the
defendants failed to appear as a consequence of different
reasons attributed in the affidavit. The second defendant
had not informed the first defendant, though summons
were served on the second defendant. Before the court
below, apart from the affidavits filed in support of the
applications, both the defendants tendered oral evidence.
The psychatrist, who treated the second defendant was
also examined. The medical certificate and OP cards in
relation to the treatment of the second defendant were also
on record. The court below took the view that the treatment
was prior to the institution of the suit and there was no
material to hold that the second defendant had such ill-
health by which he could not understand the gravity of
being served with the notice on a suit.
3. We have looked into the evidence and are of
the view that in the absence of any contra evidence by the
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plaintiff, who was the respondent before the court below in
the application to set aside the ex parte decree, the
evidence tendered by PWs 1 to 3, corroborated by Exts.A1
to A3 commands acceptance and the defendants ought to
have persuaded the court below that on law and in facts,
there were sufficient grounds to hold that they had shown
sufficient cause for their non-appearance before the court
below in answer to the summons in the suit and had also
explained the delay and there was, hence, sufficient cause
to condone the delay.
4. In spite of the serious oppositions raised on
behalf of the plaintiff that the status of the second
defendant as an alcoholic and a drug addict should not
stand in the way of the plaintiff, enjoying the fruits of the
decree, we are of the view that the defendants ought to
have been given an opportunity to contest the suit on
merits. The learned counsel for the appellant is quite right
in saying that the merits of the matter as regards the
opposition to the plaint claim would not be the
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consideration. Yet we have noticed that on merits, the
defendants’ contention is of total denial of the right of the
plaintiff over the property. On the totality of the evidence
tendered before the court below in respect of the
applications from which this appeal arises, we are satisfied
that there is no ground to assume that the defendants had
deliberately evaded the process of court or were negligent
in appearing before the court below and contesting the suit
in time. However, we are of the view that the appeal could
be allowed only on terms.
5. In the result, this appeal is allowed, setting
aside the impugned orders and allowing the applications
from which this appeal arises. This will be on terms that the
appealing defendants will pay to the plaintiff/respondent an
amount of Rs.12,500/- (Rupees Twelve Thousand Five
Hundred only) as costs by making such payment to the
learned counsel appearing before this Court within a
period of two weeks from now. The parties will appear
before the court below on 11.10.2010. The court below will
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consider the request of the plaintiff to expedite disposal of
the suit, having regard to the fact that it was instituted in
the year 2006.
THOTTATHIL.B.RADHAKRISHNAN,
JUDGE
P.BHAVADASAN, JUDGE
sta
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