IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 9814 of 2009(O)
1. SABU EMMANUAL, PAZHAYADATHU HOUSE,
... Petitioner
Vs
1. THRESYAMMA JOSEPH, CHEKKONTHARA HOUSE,
... Respondent
2. ANNAMMA JOSEPH OF DO. DO.
3. BIJU.P.L. OF DO.DO.
4. C.J.THOMAS OF DO.DO.
For Petitioner :SRI.UNNIKRISHNAN.V.ALAPATT
For Respondent :SRI.B.RAMACHANDRAN
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :13/01/2010
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).NO.9814 OF 2009 ()
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Dated this the 13th day of January, 2010
J U D G M E N T
Petitioner is the defendant in O.S.No.102 of 2006 on the
file of the Munsiff Court, Ettumanoor. Suit was one for
damages and for injunction, and the respondents are the
plaintiffs. Suit claim was resisted by the petitioner/defendant
filing a written statement, in which, he also set up a counter
claim against the plaintiffs seeking a decree for a sum of
Rs.40,000/- towards the amount due to him in the execution of
a contract work to construct a building. The
respondents/plaintiffs entered into an agreement with the
defendant and on account of breach of contract committed by
him, the plaintiffs sustained loss was the gist of their case for
the reliefs claimed in the suit. Imputing default on the part of
the respondents/plaintiffs, the petitioner/defendant has raised
his counter claim. Since the defendant did not pay the court
fee on the counter claim raised in his written statement within
WPC.9814/09 2
time and on his default to appear before the court, he was
declared ex parte, and later an ex parte decree was passed in
favour of the respondents/plaintiffs. An application was
moved by the petitioner/defendant to set aside the ex parte
decree with a petition to condone delay of 336 days. It
appears that the petition moved to condone delay was alone
numbered and the other application for setting aside the ex
parte decree remained unnumbered. After conducting an
enquiry over the petition moved to condone delay, in which,
the petitioner was examined and documentary evidence
tendered, the learned Munsiff dismissed that petition, not
being satisfied with the cause shown. Propriety and
correctness of that order is challenged in the writ petition
invoking the supervisory jurisdiction vested with this Court
under Article 227 of the Constitution of India.
2. Normally, an order passed by the subordinate court
with respect to dismissal of an application to condone delay in
a proceedings under Order IX Rule 13 of the Code of Civil
Procedure is not amenable to a challenge by way of a writ
WPC.9814/09 3
petition. However, in the given facts of the case, where the
court below has kept the application for setting aside the ex
parte decree unnumbered, but proceeded with the enquiry on
the delay petition alone, this Court has admitted the writ
petition and taken it on its file. The better course which could
have been followed by the court was consideration of the delay
petition and also the application to set aside the ex parte
decree, both of them together, and of disposing them by a
common order. In that event, the petitioner could have
challenged that order by way of an appeal as provided under
Order XLIII Rule 1 (d) of the CPC. Since the delay petition
alone was disposed of after enquiry, keeping the petition for
setting aside the ex parte decree as unnumbered, the
petitioner was prevented from filing an appeal under the
above rule as provided by the statute. Whatever that be, after
perusing Ext.P3 order passed by the court below with
reference to other exhibits tendered and taking note of the
submissions made by the counsel, I find some indulgence can
be shown to the petitioner to have a decision on merits subject
to compensating the injury likely to be suffered by the
WPC.9814/09 4
opposite party, the respondents in the present writ petition.
No counter evidence was let in by the respondents/plaintiffs
other than disputing the cause shown by the petitioner for the
delay in moving the application for setting side the ex parte
decree. The defendant has entered appearance through
counsel in the execution proceedings during the period which
was sought to be condoned mainly weighed with the court in
forming a conclusion that he had not shown sufficient cause
for condoning the delay. His sworn testimony that on account
of allergic infection, he was under continuous medical
treatment, which was supported by the medical certificate
tendered should have received due consideration from the
court especially where there was no counter evidence let in by
the opposite party to impeach the case so canvassed by him.
Considering the above aspects, I find the petition for
condoning the delay filed by him to set aside the ex parte has
to be allowed subject to payment of cost of Rs.5,000/- (Rupees
five thousand only) to the opposite party, the
respondents/plaintiffs in the suit. Cost ordered shall be
deposited before the court below within one month from the
WPC.9814/09 5
date of this judgment. If cost as ordered above is deposited,
the court below shall number the petition moved for
ex parte decree and dispose it of by setting aside the ex parte
decree passed against the petitioner to have a decision in the
suit on merits. If the cost is not deposited by the petitioner
within the time fixed by this Court, Ext.P3 order challenged in
the writ petition shall remained undisturbed. It is further
made clear that in the event an ex parte decree being set
aside and trial proceeded, the counter claim raised by the
petitioner shall not be reopened and it shall stand rejected.
Subject to the above observations, the writ petition is
disposed.
Handover a copy of the judgment to the counsel for the
petitioner on usual terms and send a copy of the judgment to
the court concerned forthwith.
S.S.SATHEESACHANDRAN
JUDGE
prp