Sukumaran and Janaki v Narayanan and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **WEDNESDAY, THE 18TH DAY OF JULY 2018 / 27TH ASHADHA, 1940** **FAO.No. 240 of 2014** **AGAINST THE ORDER DATED 04.04.2014 IN I.A.NO.903/2013 IN OS 75/2006 of SUB COURT, TIRUR** **APPELLANTS/ DEFENDANTS 10 AND 11 :** **----------------------------------** **1 SUKUMARAN, S/O.ERANJIKAT VELAYUDHAN,VALAVANNOOR AMSOM DESOM,VALAVANNOOR (PO), PIN - 676 551, TIRUR TALUK, MALAPPURAM DISTRICT** **2 JANAKI, W/O.ERANJIKAT VELAYUDHAN,PANCHATTIRI AMSOM DESOM, PARAVANNA (PO), PIN - 676 502, TIRUR TALUK, MALAPPURAM DISTRICT** **BY ADV.SRI.JAMSHEED HAFIZ** **RESPONDENTS/PLAINTIFF AND DEFENDANTS :** **----------------------------------------** ## **1. NARAYANAN,** **S/O.ERANJIKKAL SANKARAN, VALAYANNOOR (PO), PIN 676 551, VALAVANNOOR AMSOM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT** ## **2. DEVAYANI,** **S/O.ERANJIKKAL SANKARAN, KOTTEERI HOUSE, NADUVATTOM AMSOM, KARALMANNA DESOM, KARALMANNA(PO),PIN - 679 506 OTTAPPALAM TALUK, PALAKKAD DISTRICT** ## **3. AMMUKUTTY @ VALLI,W/O.KARAPPAN** **4. T.P VELAYUDHAN, S/O.AMMUKUTTY @ VALLI** ## **5. T.P PARAMESHWARAN,S/O.AMMUKUTTY @ VALLI** **--2--** **FAO.No. 240 of 2014** **-2-** **6. T.P RAJU, S/O.AMMUKUTTY @ VALLI** **7. T.P PRABHAKARAN, S/O.AMMUKUTTY @ VALLI** ## **8. T.P GOPI,** **S/O.AMMUKUTTY @ VALLI** ## **9. GANGADHARAN,** **S/O.THAZHETHE PURAKKAL VELAYUDHAN** ## **10. MEENAKSHI,** **S/O.THAZHATHE PURAKKAL VELAYUDHAN** ## **11. PRABHAKARAN,** **S/O.THAZHETHE PURAKKAL VELAYUDHAN** **12. KADALAYI HYDROSKUTTY, S/O. NOT KNOWN TO THE PETITIONER** **13. KARIPARAMBATH MUHAMMED, S/O.NOT KNOWN TO THE PETITIONER** **RESPONDENTS 3 TO 13 ARE RESIDING AT VALAVANNOOR AMSOM DESOM, VALAVANNOOR(PO) PIN - 676 551, TIRUR TALUK, MALAPPURAM DISTRICT** **R1-R2 BY ADVS. SRI.HARISH R. MENON** **SRI.K.T.SHYAMKUMAR** **R3 & R8 BY ADV. SRI.T.K.VIPINDAS** **R10 BY ADV. SRI.RILGIN V.GEORGE** **THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 18-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING :** ## **RKM** ## **K. HARILAL & ANNIE JOHN, JJ.** =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= ## **F.A.O.No. 240 of 2014** =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= **Dated this the 18[th] day of July, 2018** ## **JUDGMENT** ## _**K. Harilal, J.**_ The appellants are the petitioners in the Interlocutory Application No.903/2013 in O.S.No.75/2006 as well as the defendant Nos.10 and 11 in the aforesaid Original Suit. The Original Suit was one for partition and the appellants were set _ex parte_ . They filed the aforesaid Interlocutory Application under Order 9 Rule 13 of the Code of Civil Procedure seeking an order setting aside the _ex parte_ decree. According to the appellants, they did not get any notice or summons in the Original Suit. The first appellant was residing 4 Kms. away from the ancestral house during the year 2005-2009 in a rented quarters. The 2[nd] appellant was residing 25 Kms. away at the residence of her husband. While so, the first appellant got information that some people, claiming to be the officers of the court have come to the property, which originally belonged to the father of the petitioners. This fact was intimated to the 2[nd] appellant also and they contacted the counsel and came to know that the respondent has filed the suit for partition without showing the correct address of the petitioners and others and they got an _ex parte_ decree on 19.10.2009 and F.A.O.No. 240 of 2014 2 I.A.No.749/2010 was filed seeking final decree. The appellants have got serious contentions in the matter. Therefore, it is necessary to set aside the _ex parte_ decree, according to the appellants. There is a delay of 1204 days in filing the said petition. Hence, they prayed for condoning the delay and to set aside the _ex parte_ decree passed against them. 2. The respondent resisted the application contending that the appellants initially filed Vakalath in the Original Suit as well as final decree application and they were represented by counsel. The appellants were served with summons as well as notice in I.A.No.749/2010 properly. That apart, the appellants were present at the time of inspection by the Commissioner. The first appellant had appeared in I.A.No.749/2010 through Adv. Mishra along with defendants 7 to 9. But, no counter was filed and the present applications have filed concealing all the aforesaid facts. 3. Going by the impugned order, we find that the court below rejected the petition to condone the delay and to set aside the _ex parte_ decree mainly on the ground that the appellants have filed Ext.B1 Vakalath and they entered appearance in the final decree application and the summons was properly served to both of them as per the rules. We have F.A.O.No. 240 of 2014 3 called for the records and the records are available before us for examination. We have meticulously examined the aforesaid Vakalath and the summons. Going by Ext.B1 Vakalath, we find that the said Vakalath was filed by the first appellant alone and the 2[nd] appellant has not filed Vakalath, as observed by the court below. It follows that the first appellant alone entered appearance in the final decree proceedings. On examination of the endorsement in the returned summons, we find that the summons to the 2[nd] appellant was returned with endorsement that 'she is residing in another house'. Therefore, it can be held that the address shown in the summons was not the proper address of the 2[nd] appellant as on the date of filing the Original Suit. It was incumbent upon the plaintiff to ascertain the present address of the defendants and to incorporate the same as the address of the defendants in the summons to be served to the defendants. In the instant case, it is well discernible that at the time of filing the Original Suit, the 2[nd] appellant was not habitually residing in the address shown in the Original Suit as well as in the summons. It is true that the substituted service against the appellant was effected through paper publication. In this context, it is to be remembered that in _**Basheer M.Picha v. Indian Bank [2013 (2) KLT 951],**_ F.A.O.No. 240 of 2014 4 this Court held that the substituted service of summons cannot either be the rule or a short cut for the parties and courts to avoid service of summons in the manner laid down in Order V. On the other hand, this enabling provision is to be resorted to only in exceptional circumstances and that too only when the requirements specified in the rules are satisfied in all respects. 4. We are of the opinion that when the summons was returned with an endorsement that 'the 2[nd] appellant is residing in a different house', the plaintiff could have resorted to all earnest efforts to serve summons in the present address of the 2[nd] appellant. But in the instant case, without resorting to any effort to find out the present address of the 2[nd] appellant, the respondent has taken speedy steps to effect substituted service by way of paper publication as a short cut method to effect service. We are also of the opinion that paper publication can be resorted to only after exhausting all earnest efforts to serve summons directly in the proper address by the process server. In the instant case, we find that the substituted service had been effected as a short cut and speedy method to make it appear that the summons was served to the 2[nd] respondent. In fact, summons was not properly served in accordance with Order V Rule 9 to the 2[nd] F.A.O.No. 240 of 2014 5 respondent. In the above analysis, we find that the case of the 2[nd] appellant that she was unaware of the decree passed against her and she came to know the decree passed against her after 1204 days cannot be disbelieved. No other evidence was adduced to prove that she was aware of the _ex parte_ decree passed against her, in an earlier stage, after the institution of the plaint. In the absence of any contra evidence from the part of the respondent, we are inclined to believe that the 2[nd] appellant came to know about the _ex parte_ decree in a belated stage, after 1204 days. 5. In the above analysis, we find that the delay petition filed by the 2[nd] respondent can be allowed and further, we find that for the reasons stated above, the _ex parte_ decree also can be set aside and we do so. But, at the same time, it is made clear that we are not inclined to set aside the application to condone the delay and to set aside the _ex parte_ filed by the first appellant on the reason that the first appellant was aware of the Original Suit much earlier and he has filed Ext.B1 Vakalath in the final decree application in an earlier stage. 6. Therefore, the sufficient cause shown by the first appellant to condone the delay cannot be accepted and we reject the application to condone the delay with respect to the F.A.O.No. 240 of 2014 6 first appellant. For the very same reason, we are not inclined to set aside the _ex parte_ decree passed against the first appellant. In the result, the application to condone the delay and to set aside the _ex parte_ decree passed against him filed by the first appellant will stand dismissed and the application to condone the delay and to set aside the _ex parte_ decree passed against her, filed by the 2[nd] appellant will stand allowed. The Original Suit No.75/2006 is remitted back to the trial court. The trial court is directed to dispose of the Original Suit with respect to the 2[nd] appellant only, at the earliest, at any rate, within a period of three months from the date of receipt of a copy of this judgment. The 2[nd] respondent or her counsel shall appear before the trial court on 04.09.2018. Sd/- **K.HARILAL JUDGE** Sd/- **ANNIE JOHN JUDGE** True Copy PA to Judge RKM