High Court Kerala High Court

Sivarajan vs Sindhu on 4 February, 2008

Kerala High Court
Sivarajan vs Sindhu on 4 February, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 5180 of 2007(N)


1. SIVARAJAN,S/O.PUSHKARAN,RESIDING AT
                      ...  Petitioner

                        Vs



1. SINDHU,W/O.SANTHOSHKUMAR,KARTHIKA NIVAS,
                       ...       Respondent

2. BHAMINI, RESIDING AT PADMAVILASATHU

                For Petitioner  :SRI.PIRAPPANCODE V.S.SUDHIR

                For Respondent  :SRI.K.B.PRADEEP

The Hon'ble MR. Justice M.N.KRISHNAN

 Dated :04/02/2008

 O R D E R
                               M.N.KRISHNAN, J.
                               --------------------------
                          W.P.(C). NO. 5180 OF 2007
                                 ---------------------
                   Dated this the 4thday of February, 2008

                                   JUDGMENT

This writ petition is preferred with a prayer to set aside Ext.P10

order. Ext.P10 is an order passed by the II Additional Munsiff,

Thiruvananthapuram, in IA 2305/05 in OS 1229/99. The said application is

filed by the 1st defendant in the case to restore IA 10246/03. IA 10246/03

is filed to set aside the ex parte decree.

2. To start with, the averments in the affidavit appears to be that

the 1st defendant is swearing on behalf of the 2nd defendant as well and the

prayer was to set aside the ex parte decree. The court found that the

Advocate, who have filed the application, did not have vakalath on behalf of

the 2nd defendant. Therefore there was some directions to cure the

defects. In the process of curing defects, applications after applications

were filed and ultimately everything ended in dismissal.

3. Whatever it may be, now a situation has arisen where the

question is whether the application to restore the petition to set aside the

ex parte decree has to be restored or not. During the pendency of the

petition, 1st defendant died and the 2nd defendant has automatically become

a legal heir. I am informed by the learned counsel for the plaintiff that the

decree has been put into execution and a demarcating boundary has also

WPC NO 5180/07 2

been put up. The suit relates to immovable property and it is always

desirable that opportunities are given, if there are sufficient reasons to set

aside the ex parte decree. In this writ petition I am only concerned with the

restoration application. Whether there are sufficient grounds to set aside

the ex parte decree is a matter that has to be considered by the court

below after adducing evidence. But the plaintiff has been dragged on to

the court and therefore, I am inclined to allow IA 2305/05 by directing the

writ petitioners herein to pay cost of Rs.1,000/- to the plaintiff. If the said

cost is paid within a period of one month from today, the court below is

directed to restore IA 10246/03 and if any defects are to be cured, direct it

to be cured, afford equal opportunities to both parties to adduce both oral

and documentary evidence in support of heir respective contentions. If the

amount is not paid within the stipulated time mentioned above, the writ

petition will stand dismissed.

The writ petition is disposed of accordingly.





                                                    M.N.KRISHNAN, JUDGE

vps

WPC NO 5180/07    3