Balan v. Devaki and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN FRIDAY, THE 2ND DAY OF MARCH 2012/12TH PHALGUNA 1933 CRP.No. 313 of 2010 ( ) ----------------------CMA.NOS.23 & 24 OF 2008 of SUB COURT, TIRUR ## REVISION PETITIONER(S)/PETITIONER: ------------------------------------------- BALAN, S/O. CHEMBRA THAMI, AGED 38 YEARS, KATTIPPARUTHI AMSOM DESOM, PAINKANNUR P.O. TIRUR TALUK. BY ADV. SRI.TOM K.THOMAS RESPONDENT(S): ------------------ 1. DEVAKI, AGED 56 YEARS, D/O.VAKKAPARMBIL NEELANDAN, ANGADIPPURAM AMSOM DESOM - & P.O., PERINTHALMANNA TALUK. 2. VASUDEVAN, AGED 71 YEARS, KATTIPPARUTHI AMSOM DESOM, PAINKANNUR P.O. TIRUR TALUK. 3. SAROJINI, AGED 68 YEARS, - -DO- -DO- 4. KALIKUTTY, AGED 66 YEARS (INSANE), REP. BY GUARDIAN 5TH RESPONDENT KALI KATTIPPARUTHI AMSOM DESOM, PAINKANNUR P.O. TIRUR TALUK. 5. KALI, AGED 64 YEARS, KATTIPPARUTHI AMSOM DESOM, PAINKANNUR P.O. TIRUR TALUK. 6. KUTTAN, AGED 62 YEARS, - -DO- -DO- BY SRI.JAMSHEED HAFIZ FOR R1, R2, R4 & R6 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02-03-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRP 313/2010 ORDER IN I.A.NO.1474 OF 2010 IN C.R.P.NO.313 OF 2010 ## DISMISSED 2.3.2012 SD/- K.T.SANKARAN, JUDGE //TRUE COPY// PA TO JUDGE ## **K.T.SANKARAN, J.** -------------------------------- ## C.R.P.No.313 of 2010 --------------------------------Dated this the 2[nd] day of March, 2012 ## **O R D E R** The petitioner is not a party to O.S.No.75 of 2002 on the file of the court of the Munsiff of Tirur. His assignor was the second defendant in that suit. The suit was filed by the first respondent for partition claiming a 1/6[th] share. That suit was decreed ex-parte on 31.10.2005. The petitioner filed I.A.No.1594 of 2007 to set aside the ex-parte decree under Rule 13 of Order 9 C.P.C. I.A.No.1593 of 2007 was filed by the petitioner to condone the delay of 604 days in filing the I.A.No.1594 of 2007. Both the applications were dismissed by the trial court on 5.7.2008. The petitioner filed C.M.A.Nos.23 of 2008 and 24 of 2008 before the Sub Court, Tirur, challenging the orders passed by the trial court refusing to condone the delay and to set aside the ex-parte decree. The appellate court dismissed the appeals on 11.12.2009. The petitioner is aggrieved by the order and judgment passed by the courts below. 2 ## C.R.P.No.313/2010 2. The plaintiff and defendants in the suit are the children of Kali. Kali died in 1987. The plaint schedule property was allotted to Kali under a partition deed. There is no dispute that the plaint schedule property was the exclusive property of Kali. The plaintiff claimed a 1/6[th] share on the death of Kali. The plaintiff contended that Kali died intestate. However, there are averments in the plaint that Kali had executed some documents and if there is any such document, it is void and not binding on the plaintiff. It is also stated that Kali was suffering from cancer for the last three years before her death. It was also averred in the plaint that due to misrepresentation, Kali might have executed some documents. Further statement in the plaint is that when partition was demanded, the second defendant stated that there was a document executed by Kali in her favour. 3. The second defendant filed a written statement contending that Kali executed a registered sale deed dated 15.7.1985 in favour of the second defendant. The sale deed 3 ## C.R.P.No.313/2010 was registered as document No.2222/1985 Sub Registrar's Office, Kuttippuram. It is also stated in the written statement of the second defendant that she sold the property to the petitioner herein as per a registered sale deed dated 19.7.2002. The second defendant stated in the written statement that the petitioner herein should be impleaded in the suit as an additional defendant. 4. The second defendant remained ex-parte in the suit. The other defendants supported the plaintiff. The plaintiff produced a registration copy of the sale deed dated 15.7.1985 executed by Kali in favour of the second defendant and it was marked as Exhibit A1. The plaintiff was examined as PW1. She was not cross examined as the contesting defendant was set ex-parte in the case. The court below passed a preliminary decree for partition on 31.10.2005. Even after referring to the averments in the plaint and the averments in the written statement of the second defendant, the court below did not address itself to the question as to 4 ## C.R.P.No.313/2010 whether in the light of the registered assignment deed executed by Kali in favour of the second defendant, it is necessary for the plaintiff to get a declaration that the sale deed is vitiated by any of the vitiating circumstances as pleaded by her. The court below also did not notice that there was no prayer in the plaint to set aside the registered sale deed dated 15.7.1985 executed by Kali in favour of the second defendant. The court below also did not advert to the fact that no evidence was adduced to show that Kali executed the document without understanding its contents or as a result of misrepresentation, coercion or fraud. 5. The petitioner filed the application for setting aside the ex-parte decree on the ground that he acquired title to the property from the second defendant after institution of the suit. He contended that he obtained a loan from the Bank and constructed a house in the property spending ` 5 lakhs. The petitioner stated that he is residing with his family in the house situated in the property in question. He stated that he came to 5 C.R.P.No.313/2010 know of the ex-parte decree on 20.9.2006 and he filed a copy application to get copy of the judgment and decree. Since the copy was not obtained, the petitioner filed W.P.(C) No.32517 of 2008 before the High Court. It was contended by the petitioner that since he did not get the copy emergently, he could not file an appeal against the decree and therefore, he filed the application under Order 9 Rule 13 C.P.C. with a petition to condone the delay of 604 days in filing the application. 6. The application was opposed by the plaintiff and the other defendants. They contended that the petitioner has not stated the correct facts. Even after coming to know of the preliminary decree on 20.9.2006, the petitioner filed the application to set aside the ex-parte decree only on 3.7.2007. It was contended that the delay was not satisfactorily explained by the petitioner. It was also pointed out by the plaintiff that the petitioner had filed O.S.No.205 of 2006 for injunction in which he stated that the Sub Inspector of Police 6 C.R.P.No.313/2010 told him that a decree was passed in a partition suit. O.S.No.205 of 2006 was filed on 1.9.2006. It is stated that the averments made in the application for condonation of delay are false to the knowledge of the petitioner. 7. No evidence was adduced in the application for setting aside the ex-parte decree. 8. The trial court held that the petitioner failed to explain the delay from 20.9.2006 to the date of filing of the application. The trial court failed to advert to the application filed by the petitioner for getting copy of the judgment and decree and the filing of the Writ Petition by him before the High Court. Even after finding that the petitioner could maintain an application under Order 9 Rule 13 C.P.C., the court below rejected the application for condonation of delay on the ground that the delay was not properly explained. The appellate court also concurred with the view taken by the trial court. 7 C.R.P.No.313/2010 9. It is true that there was a delay of 604 days in filing the application to set aside the ex-parte decree. The petitioner was not a party to the suit. It is also true that he is a pendente lite transferee. Therefore, it was not necessary for the plaintiff to make the petitioner a party to the suit. His assignor was the second defendant in the suit. However, in the light of the averments in the plaint, the plaintiff was bound to prove that the property stood in the name of her mother (Kali) at the time of her death. Though several averments were made in the plaint to contend that Kali executed a document without understanding the real nature of the transaction and as a result of misrepresentation, the plaintiff did not adduce any evidence to prove the same. If Kali had executed a document in favour of the second defendant, the plaintiff would not be entitled to get a decree for partition, unless the document is found to be either void or it is set aside on the ground that it was voidable or unless the plaintiff is not bound by the document. There is no finding by the trial court that the sale deed in favour of the second defendant is void. There is no 8 ## C.R.P.No.313/2010 prayer to set aside the sale deed. Therefore, the court below ought to have considered the question whether the suit is liable to be decreed on the basis of the evidence available before it, even though the second defendant was ex-parte in the suit. On the basis of the averments in the pleadings, the trial court should have considered the merits of the case and should have arrived at a conclusion as to whether the plaintiff was entitled to the decree as prayed for, in spite of the second defendant being absent and set ex-parte. ## 10. In Haridas vs. Madhavi Amma (1987 (2) KLT 701), it was held thus : “As held in Chart Vijayan v. Achuthan Vasu (1973 KLT 849) the courts owe a duty to weigh the merits of the case and consider whether there is a case for granting a decree even when there is no contest by non appearance of the defendants. Attention to pleadings and evidence even in cases where the defendants do not appear is not only a healthy trend but also a duty cast on the court to decide whether the plaintiff has a good case to be decreed. Even in cases where the defendant remains ex parte, decreeing the suit merely on that ground without looking into the 9 C.R.P.No.313/2010 pleadings and evidence may not be conducive to justice. Whether the claim is contested or not is not the real question. The question is whether the plaintiff presented a case entitling him to get a decree. For that purpose even in cases where the defendants remain ex parte the court should insist at least on formal proof from the plaintiff as held in Kochuvelu v. Varkey (1968 KLT 462) and the judge is bound to look into pleadings and evidence.” 11. It is true that the petitioner did not state all the relevant facts correctly in the affidavit accompanying the application for condonation of delay. May be it is the result of a bad drafting. To some extent, there are laches on the part of the petitioner in filing the application for setting aside the ex-parte decree earlier. But, these laches as such are not sufficient to dismiss the application for condoning the delay in filing the application for setting aside the ex-parte decree. I am of the view that the application is liable to be allowed. However, it is necessary to direct the petitioner to pay ` 5,000/- as costs to the plaintiff as a condition for condoning the delay and for setting aside the ex-parte decree. 10 ## C.R.P.No.313/2010 12. In the result, the Civil Revision Petition is allowed and the order and judgment impugned in the revision are set aside. I.A.Nos.1593 of 2007 and 1594 of 2007 shall stand allowed on condition that the petitioner shall pay a sum of ` 5,000/- as costs to the plaintiff on or before 23.5.2012. The parties shall appear before the court below on 23.5.2012. The petitioner shall be impleaded in the suit as additional defendant. The plaintiff would be entitled to file application for amendment of plaint, if so advised. The petitioner would be entitled to file objections to the application, if any, filed for amendment of plaint. The petitioner shall be entitled to file written statement and also additional written statement, if the amendment is allowed. **K.T.SANKARAN JUDGE** csl