MATHEW N. V. Vs. ANITHA D-COSTA

JUDGEMENT

(1.) Petitioner is the 7th defendant in O.S.No.83 of 2008 on the files of the Sub Court, Sulthan Batheri. The suit is filed by the 1st respondent seeking partition of the plaint schedule property by metes and bounds and allotment of 1/8 share to her. Later, the petitioner being absent on the date fixed for evidence, she was set ex parte and an ex parte decree was passed against her on 25.6.2013. The petitioner filed Exhibit P5 petition seeking to set aside the ex parte decree along with Exhibit P6 application for condoning the delay of 695 days. The trial court dismissed both applications by Exhibit P7 common order. Aggrieved, the petitioner preferred Civil Miscellaneous Appeals before the District Court, Wayanad, which were dismissed vide Exhibits P10 and P11 judgments. This original petition is filed challenging Exhibits P7, P10 and P11 orders.

(2.) Sri.Siraj Karoli, learned counsel for the petitioner contended that detailed explanation having been submitted for the petitioner's absence on the day fixed for evidence and also for trial and for the delay in filing the application for setting aside the ex parte decree, the courts below committed gross illegality in dismissing the application. In elaboration, it is submitted that on 21.4.2009, the petitioner's son was admitted in a hospital at Calicut with serious ailment and from then onwards he was undergoing continuous treatment and had to be hospitalised frequently. From April, 2009 to June, 2015, the petitioner and his wife were fully engaged in giving care and treatment to their son. The failure to appear on the day fided for evidence and the delay in filing the application for setting aside the decree being for reasons beyond the petitioner's control, the court should have adopted a liberal approach. It is contended that the attempt of the court should be to eschew technical and procedural objections and to render justice to the parties.

(3.) Sri.Gikku Seban George, learned counsel for the 1st respondent refuted the contentions and submitted that the attempt of the petitioner is to deliberately delay the proceedings in the final decree application. It is submitted that the suit was filed in the year 2008 and a preliminary decree for partition was passed on 25.6.2013. The application for setting aside ex parte decree was filed only after receipt of notice in the final decree application. It is contended that the preliminary decree is not an ex parte decree in the strict sense since the other defendants had contested the matter and given evidence. Therefore, the remedy available to the petitioner is to file appeal against the preliminary decree. Reliance is placed on the decision of the Apex Court in Kerala State Electricity Board, Tvm. v. Precot Meridian, Palakkad,2016 4 KHC 829 to contend that a strict view has to be adopted when there is inordinate delay. Finally, it is submitted that, indulgence shown to the petitioner will be to the prejudice of the 1st respondent, who has been prosecuting her case for more than 12 years.