High Court Kerala High Court

Invest Chirs & General Finance … vs Kunji Kammu on 30 January, 2007

Kerala High Court
Invest Chirs & General Finance … vs Kunji Kammu on 30 January, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 34744 of 2004(J)


1. INVEST CHIRS & GENERAL FINANCE (P)LTD.,
                      ...  Petitioner

                        Vs



1. KUNJI KAMMU, S/O.KUHAMMED HAJI,
                       ...       Respondent

                For Petitioner  :SRI.M.K.DILEEP KUMAR

                For Respondent  :SRI.BALAKRISHNAN GOPINATH

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

 Dated :30/01/2007

 O R D E R
                               M.N.KRISHNAN, J.

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                          W.P.(C)NO.34744 OF 2004

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                Dated this the 30th day of January 2007


                                     JUDGMENT

This writ petition is filed to quash Exts.P7 and P8 orders.

The plaintiff in O.S.881/2000 is the writ petitioner. As the

defendants remained ex-parte in the suit on satisfaction the

court granted a decree in favour of the plaintiff. The first

defendant moved an application I.A.406/2004 and another

application I.A.409/2004 to set aside the ex-parte decree after

condoning delay of 60 days in filing the application. A perusal of

the affidavit filed in support of the petition revealed that at the

time when the case was listed, the first defendant was living

abroad and he could not contact his lawyer. There was also a

delay of 60 days in filing the application for condoning the delay

in filing the application for setting aside ex-parte decree. Trial

court on consideration of the entire materials granted the prayer

of the defendants. It is a settled principle that one should not be

harsh on a petitioner and deny him the opportunity of hearing in

court merely because of some negligence. Such a drastic step

should be taken only where the degree of negligence is such that

W.P.(C)NO.34744 OF 2004

Page numbers

cannot be condoned. In the case before me, the defendants had

satisfied the conscience of the court regarding the reason for

delay and also for the reason for non appearance before the

court when the suit was listed. There is no grave misconduct or

gross negligence. Therefore, the court was perfectly justified in

setting aside the ex-parte order after condoning the delay.

Therefore, this writ petition fails and it is dismissed.

M.N.KRISHNAN, JUDGE

jes