Dismissed

Ramadas v. Damodara Panicker

Kerala HC6 Feb 2013CRP/41/2013

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a civil revision petition filed under Order IX Rule 13 CPC to set aside a preliminary and final decree passed in a partition suit. The court held that despite alleged irregularities in service, the petitioner had sufficient notice and opportunity to appear as the decree was passed ex parte. Consequently, the revision petition was rejected due to the lack of merit

What did the court decide?

Civil revision petition dismissed holding no merit in the appellant's contentions regarding service of summons and knowledge of the suit.

Ramadas Vs Damodara Panicker — Partition | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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WEDNESDAY, THE 6TH DAY OF FEBRUARY 2013/17TH MAGHA 1934

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CRP.No. 41 of 2013 ()

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C.M. APPEAL NO.12/2011 OF SUB COURT, OTTAPPALAM. I.A.528/2007 & I.A.529/2007 IN OS.137/2004 OF MUNSIFF COURT, OTTAPPALAM.

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REVISION PETITIONER/APPELLANT/PETITIONER/7TH DEFENDANT:

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RAMADAS, S/O. KALARIKKAL LATE GANGADHARAN, THRIKKANGODE AMSOM, MANISSERY DESOM, OTTAPALAM TALUK AND NOW RESIDING AT DOOR NO.182, LALITHADRIPURA POST, NADANAHALLY, MYSORE.

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BY ADV. SRI.R.SREEHARI.

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RESPONDENTS/RESPONDENTS/RESPONDENTS/PLAINTIFF & DEFENDANTS:

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1. DAMODARA PANICKER, S/O.KALARIKKAL LATE RAMAN @ APPU PANICKER, THRIKKANGODE AMSOM, MANISSERY DESOM AND POST, OTTAPALAM TALUK - 679 521.

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2. KESAVADAS,

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S/O.KALARIKKAL LATE M.K.SUKUMARA PANICKER, LAKKIDI AMSOM, KILLIKURISSI MANGALAM DESOM, OTTAPALAM TALUK - 679 301.

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3. SREEVALSAN,

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S/O.KALARIKKAL LATE M.K. SUKUMARA PANICKER, LAKKIDI AMSOM, KILLIKURISSI MANGALAM DESOM, OTTAPALAM TALUK - 679 301.

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4. SUMA,

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D/O. KALARIKKAL LATE M.K.SUKUMARA PANICKER, LAKKIDI AMSOM, KILLIKURISSI MANGALAM DESOM IN OTTAPALAM TALUK AND NOW RESIDING AT DOOR NO.182, ALANAHALLY POST (FORMERLY LALITHADRIPURA POST) NADANAHALLY, MYSORE, PIN. 570 001.

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5. JAYAPRAKASAN,

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S/O.KALARIKKAL LATE M.K.SUKUMARA PANICKER, LAKKIDI AMSOM, KILLIKURISSI MANGALAM DESOM OTTAPALAM TALUK - 679 301.

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CRP.No. 41 of 2013

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6. JAYANTHI,

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D/O..KALARIKKAL LATE M.K.SUKUMARA PANICKER, LAKKIDI AMSOM, KILLIKURISSI MANGALAM DESOM, OTTAPALAM TALUK - 679 301.

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7. SANTHA, W/O.KALARIKKAL LATE GANGADHARAN, MANISSERY DESOM, MANISSERY POST, OTTAPALAM TALUK, PIN: 679 521.

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8. AMBIKA,

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D/O.KALARIKKAL LATE GANGADHARAN, MANISSERY DESOM, OTTAPALAM TALUK AND NOW RESIDING AT KALARIKKAL HOUSE, THOTTAKKARA POST, PIN. 679 102.

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9. RAMESH,

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S/O.KALARIKKAL LATE GANGADHARAN, MANISSERY DESOM AND NOW RESIDING AT NEAR KALLIKAVU TEMPLE, KANNIAMPURAM, OTTAPALAM TALUK -679 104.

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10. RAGHUNATH,

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S/O.KALARIKKAL LATE GANGADHARAN, MANISSERY POST AND NOW RESIDING AT NEAR KALLIKAVU TEMPLE, KANNIAMPURAM, OTTAPALAM TALUK -679 104.

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11. BABY,

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D/O.KALARIKKAL LATE SARADHA, MANISSERY POST AND NOW RESIDING AT K.P.TOWERS, P2-159, ARCAT ROAD, VADAPALANY, CHENNAI- 600 026.

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12. LALITHA,

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D/O.KALARIKKAL LATE SARADHA, MANISSERY POST AND NOW RESIDING AT PUTTUR KALARIKKAL, VAYALOOR, NELLAYI POST, PIN. 680 305.

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13. MURALEEDHARAN,

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S/O. .KALARIKKAL LATE SARADHA, MANISSERI AMSOM AND DESOM, MANISSERY POST AND NOW RESIDING AT LAKSHMI SOAPS & PRIVATE LTD., SHINDE, NAZIC ROAD, MUMBAI, MAHARASHTRA, PIN-400 008.

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14. K. SASIDHARAN,

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S/O. .KALARIKKAL LATE SARADHA, MANISSERY AMSOM , DESOM AND POST, NOW RESIDING AT VEERAPUNDI NAGAR, I STREET, CHOOLAIMEDU, CHENNAI, PIN - 600 094.

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CRP.No. 41 of 2013

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15. USHA, D/O..KALARIKKAL LATE SARADHA, MANISSERI POST AND NOW RESIDING AT KALARIKKAL HOUSE, CHANGAL, MATTATHUR POST, KODAKARA, THRISSUR DISTRICT, PIN-680 692.

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16. SHYLAJA, D/O.KALARIKKAL LATE SARADHA, MANISSERI AMSOM AND POST, NOW RESIDING AT CHANGAMPALLY KALARIKKAL, NADUVATTAM POST, KUTTIPURAM, MALAPPURAM DISTRICT- 679 308.

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BY ADV. MR.K.B. ARUN KUMAR.

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THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06-02-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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rs.

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THOMAS P. JOSEPH, J. ===================== Civil Revision Petition No. 41 of 2013

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============================== Dated this the 6^th day of January, 2013

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O R D E R

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Learned counsel takes notice for the first respondent.

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Petitioner is the 7^th defendant in O.S No. 137 of

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2004of the Munsiff's Court, Ottappalam.

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A preliminary and final decrees for partition are passed in that suit. After one year and three days of passing the final decree, petitioner/7^th defendant filed I.A.

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No. 528 of 2007 under Rule 13 of Order IX of the Code of Civil Procedure and I.A No. 529 of 2007 to condone delay of one year and three days in filing I.A. No. 529 of 2007. He claimed that he did not get summons/notice in the suit and the final decree proceeding and learned about the preliminary and final decrees only when he came to his native place on 02.03.2007. He is staying in Mysore since

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C.R.P. No. 41 of 2013

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-: 2 :-

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the last 20 years.

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The applications were opposed by the first respondent/plaintiff. Learned Munsiff dismissed the applications. Learned Sub Judge dismissed C.M. Appeal

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No. 12 of 2011 arising therefrom.

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It is contended by learned counsel that petitioner did not get notice/summons in the suit or final decree proceeding. It is contended that notice was served on mother of petitioner. It is also contended that petitioner has serious contentions to be raised in the suit and at any rate regarding allotment of the house. Learned counsel for first respondent contended that there is sufficient evidence and circumstances to hold that petitioner was aware of the suit and the final decree proceeding. It is also contended that in the circumstances, the request for re-opening

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C.R.P. No. 41 of 2013

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-: 3 :-

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preliminary and final decrees in a suit of the year, 2004 may not be permitted.

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As per the second proviso to Rule 13 of Order IX of the Code, no court shall set aside a decree passed ex parte

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merely on the ground that there has been irregularity in the service of summons if the court is satisfied that the defendant had notice of date hearing and had sufficient time to appear and answer plaintiff's claim. In the present case, even as per version of petitioner, summons/notice was served on his behalf on his mother. Assuming that the service of summons/notice on the petitioner is irregular for any reason, question is whether petitioner had knowledge about pendency of the suit and had opportunity to answer plaintiff's claim.

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It is also admitted that 3^rd defendant in the suit is

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C.R.P. No. 41 of 2013 -: 4 :-

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the wife of petitioner. She was staying with the petitioner

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at Mysore during the relevant time and got summons/notice. She appeared in the final decree proceedings but later remained ex parte. It is also revealed that in the final decree application notice was issued to the 3^rd defendant in her address at Mysore.

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It is not disputed that petitioner was staying with the 3^rd defendant, his wife during the relevant time. It is difficult to think that in spite of 3^rd defendant getting summons/notice and appearing in the suit, petitioner did not get information about pendency of the suit. I stated that even as per version of petitioner, he was served through his mother. Thus even if there is some irregularity in service of summons/notice, petitioner had notice of pendency of the suit and had sufficient time to appear in

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-: 5 :-

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C.R.P. No. 41 of 2013

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the preliminary and final decree proceedings. The courts below found so. In view of the above, I do not find any

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merit in the contentions raised by the petitioner.

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Civil revision is dismissed.

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Sd/- THOMAS P.JOSEPH, JUDGE

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smv

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//True copy//

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P.A. To Judge

Ramadas v. Damodara Panicker

Case brief

What is this about?

What did the court decide?

Ramadas v. Damodara Panicker

Case brief

What is this about?

What did the court decide?

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