IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 20720 of 2008(N)
1. NOORMUHAMMED
... Petitioner
Vs
1. MEERAN SAHIB
... Respondent
For Petitioner :SRI.SAJAN VARGHEESE K.
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :10/07/2008
O R D E R
M.SASIDHARAN NAMBIAR, J.
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W.P.(C) No.20720 of 2008
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Dated this the 10th July, 2008.
J U D G M E N T
This petition is filed by the defendants in O.S.No.234 of
1999, on the file of Sub Court, Palakkad, challenging the cost portion
of Ext.P3 order. Ext.P3 is an order passed in I.A.No.1368 of 2008, an
application filed under Order IX of Rule 13 of Code of Civil Procedure
to set aside the ex-parte decree. The suit was decreed ex parte on
27.3.2008. Petitioners filed an application to set aside the ex-parte
decree contending that second petitioner is the maternal aunt of the
first petitioner and first petitioner is conducting the case and her
daughter is residing at Mumbai along with her husband and her
daughter underwent a surgery at Mumbai, and, therefore, first
petitioner has to be at Mumbai, where the daughter was hospitalised,
and in such circumstances, she could not appear and that is the reason
why the suit happened to be decreed ex parte and hence ex parte
decree is to be set aside.
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2. Respondents opposed the application. Learned Sub
Judge, on the evidence, found that there is no material to support the
case of petitioners that the daughter of first petitioner was
hospitalised or that first petitioner was at Mumbai, and therefore, she
could not appear. Still learned Sub Judge taking a lenient view allowed
the application on terms.
3. The argument of the learned counsel appearing for
the petitioners is that cost awarded is excessive. The cost awarded by
learned Sub Judge is only Rs.4000/=. When learned Sub Judge found
that petitioners did not establish the case, taking a lenient view,
petition was allowed. In such circumstances, I do not find any reason
to interfere with the discretion exercised by the learned Sub Judge
or the quantum of the cost fixed. I do not find any reason to modify
the cost awarded.
The learned counsel for the petitioners further
submitted that the period fixed under Ext.P3 order was extended, but
it will expire tomorrow, and, therefore, petitioners may be permitted to
pay the cost within a reasonable time. If petitioners pay or deposit
W.P.(C) No.20720 of 2008
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the cost, as directed under Ext.P3 order, within 10 days from this day,
it will be treated as due compliance of Ext.P3 order.
M.SASIDHARAN NAMBIAR,
JUDGE
nj.