C.P. Kunjunni Guptan v. Devaki Ammal and others

1 FAO No.206 of 2018 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON ``` ``` THURSDAY, THE 30[TH] DAY OF MAY 2024 / 9TH JYAISHTA, 1946 ``` ``` FAO NO. 206 OF 2018 ``` ``` AGAINST THE ORDER DATED 31.07.2018 IN I.A.NO.657 OF 2017 IN O.S.NO.183 OF 2007 OF SUB COURT, OTTAPPALAM ------- ``` ## **`APPELLANT/PETITIONER/PLAINTIFF:`** ``` C.P.KUNJUNNI GUPTHAN, AGED 68 YEARS S/O. APPU GUPTHAN, CHUNTHATH PALOTTIL, THACHANATTUKARA, MANNARKKAD, PALAKKAD DISTRICT BY ADVS. K.MOHANAKANNAN SMT.T.V.NEEMA ``` ``` RESPONDENTS/DEFENDANTS 1 TO6,8 TO 12, 14, 16 TO51 ``` ``` AND 53 TO64: ``` - **`1 DEVAKI AMMAL, AGED 97 YEARS W/O. CHUNTHATH PALOTTIL APPU GUPTHAN (LATE) THACHANATTUKARA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT 678 582.`** - **`2 C.P RADHAKRISHNA GUPTHAN, AGED 67 YEARS S/O. CHUNTHATH PALOTTIL APPU GUPTHAN (LATE) KULAKATTUKURUSSI AMSOM DESOM, OTTAPALAM TALUK, PALAKKAD DISTRICT 679 101. (NOW RESIDING AT KADAMPAZHIPURAM AMSOM AND DESOM)`** - **`3 C.P DEVADATHA, AGED 63 YEARS S/O. CHUNTHATH PALOTTIL APPU GUPTHAN (LATE), THACHANATTUKARA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT 678 582.`** - **`4 C.P BALASUBRAMANIA GUPTHAN, AGED 53 YEARS, S/O. CHUNTHATH PALOTTIL APPU GUPTHAN (LATE), THACHANATTUKARA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT 678 582.`** - **`5 C.P SANTHAKUMARI RAMAKRISHNAN, AGED 56 YEARS, D/O.CHUNTHATH PALOTTIL APPU GUPTHAN (LATE) THACHANATTUKARA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT RESIDING AT KUNNATH HOUSE, ETHIRPANAM DESOM, MANNARKKAD, PALAKKAD-678 582.`** - **`6 C.P INDIRA RAMAKRISHNAN, AGED 54 YEARS, S/O. CHUNTHATH PALOTTIL APPU GUPTHAN (LATE)`** 2 FAO No.206 of 2018 - **`THACHANATTUKARA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT 678 582. RESIDING AT PUTHANKALAM HOUSE, KALIYODE DESOM, KARIMBA AMSOM, MANNARKKAD TALUK`** - **`7 P.B MURALEEDHARAN, AGED 55 YEARS S/O. CHUNTHATH PALOTTU VEETTIL LATE BALAKRISHNA GUPTHAN, THACHANATTUKARA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT 678 582.`** - **`8 C.P VENUGOPALAN, AGED 52 YEARS S/O. CHUNTHATH PALOTTIL SANKARA GUPTHAN (LATE) THACHANATTUKARA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT 678 582.`** - **`9 P.S SETHUMADHAVAN, AGED 50 YEARS S/O. CHUNTHATH PALOTTIL SANKARA GUPTHAN (LATE) KOTTATHARA DESOM, AGALI AMSOM, MANNARKKAD TALUK, PALAKKAD DISTRICT 678 582.`** - **`10 P.S SYAMALA, AGED 60 YEARS W/O. ACHUTHA GUPTHAN (LATE) KOLANIKKALAM VEEDU, KILIRANIYIL, MANNARKKAD TALUK, PALAKKAD DISTRICT 678 582`** - **`11 P.S VALSALA CHANDRAN, AGED 56 YEARS W/O. ARATTUTHODIYIL CHANDRA GUPTAN, THACHANATTUKARA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT 678 582`** - **`12 P.N RAGUNATHAN, AGED 42 YEARS S/O. P. NAMBANKUTTY GUPTHAN (LATE), AGED 52 YEARS, RESIDING AT CHUNTHATH PALOTTIL VEEDU, THACHANATTUKARA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT 678 582.`** - **`13 BEEVIKUTTY, AGED 58 YEARS W/O. KUNNATH ALI, THACHANATTUKARA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT 678 582`** - **`14 SUKUMARAN NAIR, AGED 68 YEARS S/O. MUTHIYIL NEDUMBARA KALATHIL CHINNAMMU AMMA, THACHANATTUKARA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT 678 582.`** - **`15 SANTHA @ VASANTHA KUMARI, AGED 53 YEARS W/O. CHUNTHATH PALOTTIL KUNHUNNI GUPTHAN, THACHANATTUKARA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT 678 582.`** - **`16 KUNHA @ KUNJULAKSHMI, AGED 68 YEARS D/O. SANKARAN MOOTHAN, KOOTHUPARAMBIL VEEDU, THACHANATTUKARA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT 678 582.`** - **`17 POTHIRATHU THANKAMANI, AGED 58 YEARS D/O.MATHILINGAL NARAYANA GUPTHAN, THACHANATTUKARA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT 678 582.`** - **`18 NARAYANANKUTTY, AGED 62 YEARS S/O.PULIYATHU RAMANKUTTY GUPTHAN, THACHANATTUKARA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT 678 582.`** - **`19 PATHUKUTTY, AGED 48 YEARS W/O. PUTHUPARAMBIL KUNHUNNI, THACHANATTUKARA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT 678 582.`** - **`20 SECRETARY, THACHANATTUKARA GRAMA PANCHAYAT, P.O PALODE, (VIA), MANNARKKAD, MANNARKKAD TALUK, PALAKKAD DISTRICT-678 582.`** 3 FAO No.206 of 2018 - **`21 THE MANAGER, PALAKKAD DISTRICT CO-OPERATIVE BANK, PALAKKAD P.O, PALAKKAD DISTRICT-678 001.`** - **`22 BALAKRISHNAN, AGED 58 YEARS S/O. KRISHNAN MOOTHAN, CHUNTHATH PALOTTIL, THACHANATTUKARA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT 678 582.`** - **`23 SANKARANKUTTY, AGED 68 YEARS S/O. KRISHNAN MOOTHAN, CHUNTHATH PALOTTIL, THACHANATTUKARA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT 678 582.`** - **`24 BHARGAVI, AGED 73 YEARS W/O. BALAKRISHNA GUPTHAN, CHUNTHATH PALOTTIL, THACHANATTUKARA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT 678 582.`** - **`25 PANKAJAM, AGED 68 YEARS W/O. NAMBANKUTTY GUPTHAN, CHUNTHATH PALOTTIL, THACHANATTUKARA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT 678 582.`** - **`26 GEETHA P.N, AGED 58 YEARS W/O. BALACHANDRAN, NEAR SEVANA SAMAJAM OFFICE, MOOTHANTHARA, VADAKKUMTHARA P.O, PALAKKAD DISTRICT 678 012.`** - **`27 PRASANNA P.N, AGED 56 YEARS W/O. DAYANANDAN, RAMA BHAVAN, CHETTIYAMKUNNATH, MANDAZHY, PULAPATTA, OTTAPPALAM TALUK, PALAKKAD DISTRICT 678 632.`** - **`28 JAYASREE P.N, AGED 53 YEARS W/O. UNNI @ VIJAYAKRISHNAN, RAMA BHAVAN, CHETTIYAMKUNNATH, MANDAZHY, PULAPATTA, OTTAPPALAM TALUK, PALAKKAD DISTRICT 678 632.`** - **`29 JYOTHI P.N, AGED 48 YEARS W/O. MANOHARAN, DWARAKA, KRISHNAKANANTHI COLONY, LOTUS APARTMENT, BY-PASS ROAD, KOPPAM, PALAKKAD DISTRICT 678 001.`** - **`30 INDIRA, AGED 52 YEARS D/O.LATE C.P BALAKRISHNAN GUPTHAN, CHUNTHATH PALOTTIL, THACHANATTUKARA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT AND W/O. GANGADHARAN, PRANAVAM, CHINMAYANAGAR, MELAMURI, PALAKKAD DISTRICT 678 006`** - **`31 AYISHA, AGED 64 YEARS W/O. KUNNATH LATE MOHAMMED @ BAPPU, THACHANATTUKARA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT-678 582.`** - **`32 ABDUL MAJEED, AGED 44 YEARS S/O. KUNNATH LATE MOHAMMED @ BAPPU, THACHANATTUKARA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT-678 582.`** - **`33 MUHAMMED, AGED 40 YEARS S/O. KUNNATH LATE MOHAMMED @ BAPPU, THACHANATTUKARA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT-678 582.`** - **`34 NOUFAL, AGED 28 YEARS W/O. KUNNATH LATE MOHAMMED @ BAPPU, THACHANATTUKARA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT-678 582.`** - **`35 ABDUL NAZAR, AGED 26 YEARS S/O. KUNNATH LATE MOHAMMED @ BAPPU, THACHANATTUKARA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT-678 582.`** 4 FAO No.206 of 2018 - **`36 SARA, W/O. RAYIN AND D/O. KUNNATH LATE MOHAMMED @ BAPPU, THACHANATTUKARA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT-678 582.`** - **`37 FATHIMA, AGED 31 YEARS W/O. HAMSA AND D/O. KUNNATH LATE MOHAMMED @ BAPPU, THACHANATTUKARA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT-678 582.`** - **`38 SAFIYA, W/O. IQBAL, AND D/O. KUNNATH LATE MOHAMMED @ BAPPU, THACHANATTUKARA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT-678 582.`** - **`39 NUSARATH W/O. NASSAR AND D/O. KUNNATH LATE MOHAMMED @ BAPPU, THACHANATTUKARA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT-678 582.`** - **`40 RAMLA, W/O. HAMEED, AND D/O. KUNNATH LATE MOHAMMED @ BAPPU, THACHANATTUKARA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT-678 582.`** - **`41 RAHIYA, AGED 21 YEARS D/O. D/O. KUNNATH LATE MOHAMMED @ BAPPU, PALODE P.O, MANNARKKAD COLLEGE, THACHANATTUKARA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT-678 582.`** - **`42 HASSAN, AGED 49 YEARS S/O. UMMAR HAJI, KULUKKAMPARA, THACHANATTUKARA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT-678 582.`** - **`43 VEERAN, AGED 35 YEARS S/O. MOIDEEN HAJI, CHERIPURATH, KULUKKAMPARA, THACHANATTUKARA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT-678 582.`** - **`44 MANSOOR, AGED 30 YEARS S/O. HAMSA, THENCHEERI PARAMBIL, KULUKKAMPARA, THACHANATTUKARA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT 678 582.`** - **`45 ABDUL BASHEER, AGED 33 YEARS S/O. HAMSA, THENCHEERIPARAMBIL, KULUKKAMPARA, THACHANATTUKARA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT-678 582.`** - **`46 SAHADEVAN, AGED 65 YEARS S/O. V.P SUBRAHMANIAN, DEVASANTHAM HOUSE, PIRAYIRI, PANACHAYAT, PALAKKAD TALUK, PALAKKAD DISTRICT-678 001.`** - **`47 T.P SOMASUNDARAN, AGED 36 YEARS S/O. T.P RAMAKRISHNAN GUPTHAN, THAZHATHEPODIYIL, KURAKURUSSI VILLAGE, MANNARKKAD TALUK, PALAKKAD DISTRICT-678 582.`** - **`48 ABDUL AZEES, AGED 39 YEARS S/O. MARAKKAR HAJI, PALLIYALTHODI, PALODE P.O, THACHANATTUKARA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT 678 582.`** - **`49 THE DISTRICT COLLECTOR CIVIL STATION, PALAKKAD 678 001`** - **`50 KUNHUKUTTY AMMAL, AGED 79 YEARS W/O. SANKARAN MOOTHAN, KOOTHUPARAMBIL, THACHANATTUKARA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT 678 582.`** - **`51 RAJAN, AGED 51 YEARS S/O.LATE SANKARA MOOTHAN, KOOTHUPARAMBIL, PALODE P.O, THACHANATTUKARA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT 678 582.`** 5 FAO No.206 of 2018 - **`52 KUNHUMALU AMMAL, AGED 71 YEARS W/O. SIVARAMA GUPTHAN, AMPALATH, CHETHALLUR P.O, AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT`** - **`53 KUNHILAKSHMI, AGED 71 YEARS W/O. LATE APPUKUTTAN, PARAKKAL, VALAMBILIMANGALAM AMSOM DESOM, OTTAPPALAM TALUK, PALAKKAD DISTRICT`** - **`54 THE MANAGER, ACID FACTORY, PALOD P.O, THACHANATTUKARA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT- 678 582.`** - **`55 THE MANAGER, VIJAYA BANK, BRANCH MANNARKKAD, PALAKKAD-678 582.`** - **`56 THE MANAGER, STATE BANK OF TRAVANCORE, MANNARKKAD, PALAKKAD-678 582.`** - **`57 THE MANAGER, STATE BANK OF INDIA, KANHIRAPUZHA BRANCH, THACHAMPARA P.O, MANNARKKAD, PALAKKAD-678 582.`** - **`58 VEERAN, AGED 51 YEARS S/O. KUNHAHAMMATH, PARAKKALLIL, PALODE P.O, THACHANATTUKARA AMSOM DESOM, MANNARKKAD, PALAKKAD-678 582.`** - **`59 MOIDEEN HAJI, AGED 66 YEARS S/O. KUTTYMUHAMMED, PALODE P.O, THACHANATTUKARA AMSOM DESOM, MANNARKKAD, PALAKKAD-678 582.`** - **`60 M.T MUHAMMED, AGED 66 YEARS S/O. KADEESUMMA, MADAYITHODI, PALODE P.O, THACHANATTUKARA AMSOM DESOM, MANNARKKAD, PALAKKAD 678 582`** - **`61 KUNHILAKSHMI AMMAL, AGED 56 YEARS, W/O.LATE PALLIKUTTY, CHUNDAYIL, PALODE P.O, THACHANATTUKARA AMSOM DESOM, MANNARKKAD, PALAKKAD 678 582`** - **`62 SOUMYA, AGED 26 YEARS D/O. LATE PALLIKUTTY, CHUNDAYIL, PALODE P.O, THACHANATTUKARA AMSOM DESOM, MANNARKKAD, PALAKKAD 678 582.`** - **`63 REMYA, AGED 24 YEARS D/O.LATE PALLIKUTTY, CHUNDAYIL, PALODE P.O, THACHANATTUKARA AMSOM DESOM, MANNARKKAD, PALAKKAD 678 582.`** ``` BY ADVS. ``` - **`JAYARAM P FOR R10, R20 AND R51. SRI.D.KRISHNA PRASAD FOR R13 AND R19`** - **`SRI.A.R.GANGADAS FOR R46`** - **`SRI.LEO GEORGE F0R R55`** - **`SRI.N.RAYNOLD FERNANDEZ FOR R57 SRI.MANU GEORGE KURUVILLA FOR 57 SMT.MINI V.MENON FOR R13 AND R19`** ``` SRI.AMAL GEORGE FOR R57 SMT.MEGHA CHANDRAN FOR R57 ``` ``` THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 30.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 6 FAO No.206 of 2018 ## **JUDGMENT** ## **Harisankar V.Menon, J** . The plaintiff in O.S.No.183 of 2007 on the file of the Sub Court, Ottappalam is the appellant in this appeal. The suit was one for partition. The suit was posted for trial on 1.3.2017. The plaintiff filed I.A.No.456 of 2017 for removing the case from the list. This said petition happened to be dismissed on 1.3.2017. 2. Therefore, the plaintiff presented I.A.No.657 of 2017 under Order IX Rule 9 of the Code of Civil Procedure (for short, ‘CPC’) for restoring the suit pointing out that the plaintiff was suffering from jaundice, on account of which, he could not get ready for the trial when the suit was listed. A medical certificate was also marked. 3. The trial court by its order dated 31.7.2018, found that the petition cannot be acted upon as there is no sufficient ground for the non-appearance of the plaintiff on 1.3.2017. Resultantly, I.A.No.657 of 2017 is dismissed. 7 FAO No.206 of 2018 4. It is against the above order dated 31.07.2018 in I.A.No.657 of 2017 in O.S.No.183 of 2007 of the Subordinate Judge's Court, Ottappalam, that this appeal is filed. 5. This appeal is admitted on 28.11.2018. Respondents 7, 8, 13, 19, 22 and 23 entered appearance. 6. We have heard the learned counsel appearing for the appellant, the learned counsel representing respondents 13 and 19 and the learned counsel representing respondents 7, 8, 22 and 23. 7. The only issue to be considered in this appeal is as regards the sustainability or otherwise of the impugned order by which the petition filed under Order IX Rule 9 of CPC is dismissed. The suit was posted for trial on 1.3.2017. The plaintiff filed I.A.No.456 of 2017 to remove the case from the list. The said I.A. is dismissed. I.A.No.657 of 2017 is presented pointing out that the non-appearance was not willful. It is stated that the plaintiff was laid up on account of jaundice. A medical 8 FAO No.206 of 2018 certificate is also marked, the genuineness of which, is challenged by the contesting defendants. The trial court has pointed out three earlier occasions during 2010, 2011 and 2012, when the suit was earlier listed for trial. On the first occasion, the suit was adjourned. On the last occasion, the counsel reported no instructions, on account of which, the suit was dismissed. Thereafter, on the basis of a petition for restoration, presented by the plaintiff, the suit is restored. 8. It is thereafter that the suit came up for trial on 1.3.2017, which ultimately led to the impugned order being passed by the trial court. Order IX Rule 9 of CPC reads as under: “9. Decree against plaintiff by default bars fresh suit: (1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with 9 FAO No.206 of 2018 the suit. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party.” 9. On a reading of the above Rule for setting aside the dismissal of the suit, the plaintiff need only to satisfy - the court that there was sufficient cause for his non appearance when the suit was called on for hearing. The court is also competent to fix costs for allowing the petition for setting aside the dismissal. 10. In **G.P.Srivastava v. R.K.Raizada and Others** **[(2000) 3 SCC 54]** , the Apex Court considering an application under Order IX Rule 13 of CPC has laid down the following: “7. Under Order IX Rule 13 CPC, an ex parte decree passed against a defendant can be set aside upon satisfaction of the Court that either the summons were not duly served upon the defendant or he was prevented by any "sufficient cause" from appearing when the suit was called on for hearing. Unless "sufficient cause" is shown for non-appearance of the defendant in the case on the date of hearing, the court has no power to set aside an ex parte decree. The words "was prevented by any sufficient cause from appearing" 10 FAO No.206 of 2018 must be liberally construed to enable the court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order IX Rule 13 has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The "sufficient cause" for non-appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If "sufficient cause" is made out for non-appearance of the defendant on the date fixed for hearing when ex parte proceedings were initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where the defendant approaches the court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits.” Again in **Peeves Enterprises v. Muhammed Asharaf** **[2015 (3) KHC 981(DB)]** , a Division Bench of this Court wherein one of us (Anil K. Narendran, J.) was a party, has laid down the following: 11 FAO No.206 of 2018 “16. On an application filed under Order IX Rule 13 of the Code, the court has to find out whether the erring party has made out sufficient cause for setting aside the ex parte decree. When no negligence or inaction is imputable to the erring party and the absence was not malafide or intentional, the discretion has to be exercised in his favour, especially when the application is within the statutory time limit. In appropriate cases, the plaintiff can be compensated by adequate costs for the loss of time and the inconvenience caused to him. But any such condition shall not be too onerous.” 11. As laid down in the above judgments an applicant is only to prove that there was sufficient reason for non-appearance on the date of dismissal of the suit. His past conduct is not to be looked into. In the light of the above principles, it is to be noticed that on 1.3.2017, when the suit was listed for trial, the petitioner filed an appropriate application. A medical certificate is also produced along with the petition under Order IX Rule 9 of CPC. We find no reason to disbelieve the above stand. This is especially so in view of the fact that the suit was one for partition. In such circumstances, this appeal is allowed, by 12 FAO No.206 of 2018 setting aside the order dated 31.07.2018 in I.A.No.657 of 2017 in O.S.No.183 of 2007 on the file of the Subordinate Judge's Court, Ottappalam, on the following conditions: - i. The appellant-plaintiff remits Rs.3,000/- each before the trial court favouring respondents 7, 8, 13, 19, 22 and 23, towards costs, within a period of three weeks from the date of receipt of a copy of this judgment and filing a memo to that effect before the trial court. - ii. The trial court is to list the suit (O.S.No.183 of 2007) and dispose of the same as expeditiously as possible, at any rate, within a period of five months from the date of production of a certified copy of this judgment. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** ## **HARISANKAR V. MENON, JUDGE** ln