O.S. 171 of 2007 was instituted before the Sub Court, Ottapalam seeking eviction of the defendants from the suit property. The petitioner herein was the fifth defendant in the suit and being a minor at the relevant time, his father was appointed as the guardian.
2. The plaintiff alleged that the family of the first defendant of which the fifth defendant was a member were depended on the family of the plaintiff and as a result of that dependency they were allowed to reside in a house belonging to the plaintiff. Things went well for a long time and then after the death of the husband of the first defendant in the suit, discordant notes arose between the parties. Therefore the plaintiff laid the suit for eviction. Since the other defendants were residing along with the first defendant, they were made parties.
3. Defendants 1 to 4 resisted the suit by filing a written statement. Their main contention was that the permissive occupation alleged in the plaint was not true and in fact the first defendant in the suit obtained patta in respect of the property in which the house is situated and she was entitled to hold the property in her own right.
4. Though such a contention was taken and independent right was asserted by the first defendant, which contention was adopted by defendants 2 to 4, it appears that when the suit came up for trial, the counsel appearing for the defendants reported no instructions and an ex-parte decree came to be passed.
5. Execution was taken out by the decree holder. At that time, the fifth defendant who was a minor at the time of filing of the suit has come forward with a petition to set aside the ex-parte decree alleging that his father did not properly contest the suit and he had not taken all the necessary contentions to resist the suit. It was also claimed that the fifth defendant was unaware of the pendency of the suit and he came to know about the suit only when he got notice in the execution petition. Contending that there was substantial contentions to be raised on his behalf to resist the suit, he moved a petition to set aside the ex-parte decree with a petition to condone the delay.
6. The trial court considered the petitions and by order dated 17.8.2011 found no merit in both the petitions and dismissed the delay condonation petition and consequently the petition to set aside the ex-parte decree also. The aggrieved defendant carried the matter in appeal as C.M.A. 71 of 2011. The lower appellate court after independent evaluation of the materials came to the conclusion that there was nothing to interfere with the finding of the court below and dismissed the appeal. It is the said order that is assailed in this revision petition.
7. Learned counsel appearing for the revision petitioner contended that both the courts below have erred in law in not granting opportunity to the petitioner to contest the suit on merits. It was pointed out that he had contentions to be raised in the suit which had not been raised by his father and his father had not properly contested the suit. Learned counsel pointed out that the petitioner was unaware of the pendency of the suit and he came to know about the suit and the decree passed only when he received notice in the execution petition. As a consequence of the decree having been passed ex-parte, the petitioner is likely to be thrown out from the premises which considerably affects his rights. It was therefore contended that these aspects ought to have been taken note of by the court below and ought not to have dismissed the petitions.
8. The contesting respondent is represented by learned Senior Counsel Shri. T. Sethumadhavan. Learned Senior Counsel pointed out that as long as there is no case for the petitioner before this Court that his father who had filed a joint written statement along with the other defendants had a conflicting interest to that of the petitioner or that his father had failed to protect the independent rights and interests of the petitioner, there can be no justification in setting aside the ex-parte decree. Referring to the joint written statement filed by defendants 1 to 4, it is pointed out that in fact the claim was that the first defendant had obtained pattayam for the property and she had independent right over the property. There is no whisper about the independent rights of the other defendants over the suit property. They were all residing along with the first defendant. Even in the affidavit in support of the petition to set aside the ex-parte decree, it is pointed out that the petitioner does not set up any independent right and his claim was that all his contentions have not been taken by his father and the suit was not properly contested. There is no case for the petitioner, according to the learned Senior Counsel, that his interests were jeopardized by the act committed by the father and his father did not protect his interests. It was under those circumstances, according to the learned Senior Counsel, that the courts below were constrained to observe that there is no prejudice caused to the petitioner and had dismissed the applications. No grounds are made out to interfere with those findings.
9. After having heard learned counsel on both sides and having gone through the judgments of the courts below, it becomes difficult to accept the plea of the petitioner for setting aside the ex-parte decree. Admittedly the petitioner does not have any independent right or claim over the property. He is residing along with his grandmother, the first defendant, who claims to have obtained a patta in respect of the property. She had claimed the said right in the written statement filed by her along with the other three defendants. Even the father of the petitioner did not claim any independent right except that the petitioner's grandmother had a pattayam in her favour. Even though the written statement was filed by defendants 1 to 4 raising a contention on the basis of Ext.P4 which they claim to have obtained in respect of the property, for reasons best known to them, they gave up the chase and an ex-parte decree came to be passed.
10. Both the courts below have noticed that while giving evidence as P.W.1, the petitioner has no case that his interests were not protected by his father nor did he has a case that his father had a conflicting interest and therefore the non-contest by the father affected his interests. In fact the trial court has noticed that P.W.1 has stated that he had no claim other than the claim made by his father.
11. It is also difficult to accept the plea of the petitioner that he was unaware of the pendency of the suit. Even though a contention was taken by the petitioner that the plaintiff in the suit was duty bound to inform that the petitioner had become a major and take such steps as are necessary, both the contentions were rightly repelled on the basis of the provisions in the Code of Civil Procedure. One may refer to Order 32 Rule 5, 12, 13 etc., of C.P.C. in this regard. It is unnecessary to discuss them in detail.
12. Merely because the petitioner is residing with the first defendant and others, it cannot clothe him with any independent right. His only grievance is that the suit was not properly contested by the other defendants.
13. At the time of hearing, learned counsel for the petitioner pointed out that the first defendant and the second defendant were bed ridden and therefore they were unable to contest the suit. Unfortunately for the petitioner, in the affidavit in support of the petition to set aside the ex-parte decree, there is no such averment. If as a matter of fact, the defendants who have filed the written statement were precluded from contesting the suit due to illness or other reason, one would have expected them to come forward with a petition to set aside the ex-parte decree. Even after receiving notice in the execution petition, they kept mum accepting the decree. The attempt of the petitioner to have the ex-parte decree set aside will have to be viewed in that context.
14. There can be no manner of doubt that the petitioner has been set up by the other defendants to jeopardize the decree obtained by the plaintiff and to deny her the fruits of the decree. This Court finds no grounds to interfere with the findings of the court below. There is no merit in this petition.
This Civil Revision Petition is without merits and it is dismissed.
sb.
P. BHAVADASAN, JUDGE