The court upheld that delays in legal proceedings must be adequately explained, particularly when seeking to overturn ex parte judgments.

JUDGMENT

The petitioner is the 5^th defendant in a suit for partition. Nine items of property were included in the suit. The petitioner entered appearance and contested the suit, contending that item Nos. 5 and 6 are not partible by virtue of a registered Will No.38/2000 executed in his favour as well as in favour of his mother. Though a written statement was filed, the petitioner did not appear to adduce any evidence. The case was posted for trial on 06.12.2013. On the said date, the counsel for the petitioner reported no instructions. The case was thereafter posted to 07.01.2014, on which date a preliminary decree for partition was passed. Later, on 17.09.2014, the petitioner entered appearance in the final decree proceedings. It is also pointed out that the petitioner participated in the final decree proceedings and was present on 27.06.2015 when the Commissioner inspected the decree scheduled property. Thereafter, on 06.01.2016, an application was filed under Order IX Rule 13 of the Code of Civil Procedure , 1908, to set aside the ex parte decree passed against him. This application was accompanied by an application to condone the delay of 700 days in filing the application under Order IX Rule 13. In the application under Order IX Rule 13, what was stated was that, since he was away in Chennai in connection with his job, he was unable to instruct his counsel and tender evidence in support of his plea that Item Nos.5 and 6 are not liable for partition by virtue of the above mentioned Will. Pertinently, along with the written statement, a copy of the Will was not produced. Nor was the same produced along with the application for setting aside the ex parte decree. The application was opposed by the respondents by filing a counter, pointing out the various dates on which the Commissioner inspected the property and further that on 17.09.2014, the petitioner had entered appearance on the final decree proceedings, but still did not satisfactorily explain the delay from the said date till the filing of the application.

2. The Sub Court, Koyilandy took up the application for setting aside the ex parte decree along with the delay petition and, by order dated 09.07.2024 (Ext.P7) rejected the same holding that no sufficient cause had been shown to condone the delay of 700 days. Accordingly, the application for condonation of delay was dismissed and consequently the application for setting aside the ex parte decree was also dismissed.

3. Aggrieved, the petitioner preferred an appeal before the Additional District Court-V, Kozhikode and by judgment dated 26.03.2025, the appeal was dismissed, and hence the present Original Petition.

4. Heard Sri.Jawahar Jose, the learned counsel appearing for the petitioner, and Sri.R.K.Muraleedharan, the learned counsel appearing for respondent Nos.1, 2, 4 and 5.

5. Sri.Jawahar Jose, the learned counsel appearing for the petitioner, pleaded indulgence of this Court so that valuable rights of the petitioner covered by registered Will No.38/2000 executed by the father of the petitioner in his favour and in favour of his mother could be saved from the preliminary decree. He further pointed out that despite a specific contention in the written statement regarding the non-partibility of Item Nos.5 and 6, there were no contra pleadings by the plaintiff questioning the genuineness of the Will. In support of his contention he relied on the decision of this Court in Ammini Kuruvila & Ors. v. Kunjumol Charly & Ors. [2021 (6) KHC 546]. As regards the delay, the learned counsel for the petitioner