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2024 Supreme(Online)(KER) 32396
HIGH COURT OF KERALA
VIJU ABRAHAM, J
AJITHKUMAR – Appellant
Versus
V.P. KAMALAM MENON – Respondent
OP(C) 1619/2024
RAJESH SIVARAMANKUTTY, K.V.ANTONY, A.P.BEELAMMA, VIJINA K., ARUL MURALIDHARAN
A party exparte in a partition suit cannot seek relief without prior participation or a declared share in the decree.
Headnote:
Partition - Original Petition - Act Section List - The court dismissed the original petition seeking to set aside a prior order, emphasizing the petitioner's failure to participate in earlier proceedings and the absence of a declared share in the preliminary decree.
Fact of the Case:
The petitioner, a defendant in a partition suit, claimed he was not served with the plaint and sought to set aside an order while requesting timely disposal of objections and reports in the final decree proceedings.
Finding of the Court:
The court found that the petitioner was exparte in both the preliminary and final decree proceedings, had not filed necessary petitions to challenge the commission report, and failed to demonstrate any entitlement to relief.
Issues: Whether the petitioner was entitled to set aside the order and seek relief in the final decree proceedings despite being exparte and not having a declared share.
Ratio Decidendi: The court held that the petitioner, having not participated in earlier proceedings and lacking a declared share, was not entitled to the relief sought.
Final Decision: The original petition is dismissed.
J U D G M E N T
Above original petition is filed seeking to set aside Ext.P5, and for a direction to dispose of Ext.P4 objections and Ext.P3 Commissioner’s report and plan within a time limit to be fixed by this Court.
2. Petitioner is the 7th defendant in OS No.13/2015, a suit filed by respondents 1 to 6 herein for partition. A preliminary decree was passed exparte against the petitioner and some other defendants. Petitioner contends that he was not served with a copy of the plaint. Later on, final decree proceedings have been initiated by filing FDIA No.98/2019. An Advocate Commissioner was appointed in the final decree proceedings and Ext.P3 commissioner report and plan was filed, to which petitioner filed Ext.P4 objection. Petitioner submits that the trial Court is proceeding with the matter without considering Ext.P4, and the trial Court observed that until and unless orders are issued by this Court, final decree will be passed in the matter without consideration of Ext.P4, as could be seen from Ext.P5 order issued by the Subordinate Judges Court, Ottappalam.
3. When the matter came up for consideration earlier, this Court has called for a report regarding the present stage and proceedings in the final decree application. A detailed report has been filed by the trial Court, wherein it is stated that the petitioner was exparte in the suit and no share was declared in favour of the petitioner in the preliminary decree which was passed as early as in 17.10.2018. In the final decree application also the petitioner was set exparte on 11.03.2020. Later on, on 24.01.2024 the petitioner represented in the final decree proceedings, and it is noted that till 24.01.2024 there is no representation for the 5th respondent. The petitioner has filed his objection to the Commissioner report raising certain contentions. It is also reported that no petition has been filed to set aside the commission report. It is further reported that on 10.07.2024 the petitioner appeared in person before the trial Court and submitted that he has approached this Court but no stay order was produced on that day. On the said submission the case was reopened and posted to 24.07.2024. On 24.07.2024 also the Counsel for the petitioner sought time to produce order from this Court. 4. Admittedly, in the suit petitioner was exparte and that in the preliminary decree no share was allotted in favour of the petitioner. In the final decree proceedings also the petitioner was set exparte as early as on 11.03.2020, but he appeared before the Court in the final decree proceedings on 24.01.2024. Petitioner has not filed any petition to set aside the commission report nor filed any appeal challenging the preliminary decree. He has also not filed any application for passing any supplementary preliminary decree if there was a grievance that the share was not declared in the preliminary decree. It is taking all these aspects into consideration, especially the fact that no share was declared in favour of the petitioner in the preliminary decree that further proceedings were initiated in the final decree proceedings. Another aspect to be noted is that the present OP was presented only on 26.07.2024. As per the report submitted by the trial Court, on 10.07.2024 the petitioner has made a submission before the trial Court that he has approached this Court but no stay order was produced on that day, and the case was posted to 24.07.2024. On 24.07.2024 also the petitioner has sought time for producing the order. It is only thereafter on 26.07.2024 that the present original petition is filed. Without approaching this Court by filing OP(C) it was not proper on the part of the petitioner to have made a submission before the trial Court that he has already approached this Court.
Taking all these aspects into consideration, I am of the opinion that petitioner is not entitled for any of the reliefs sought for.
Accordingly the above original petition is dismissed.
