IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 32508 of 2008(T)
1. PANKAJAKSHY AMMA, 61 YEARS
... Petitioner
2. MADHAVI AMMA, AGED 81 YEARS
Vs
1. THODUVAYIL CHANDRAN NAMBI, 57 YEARS
... Respondent
For Petitioner :SRI.A.BALAGOPALAN
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :06/11/2008
O R D E R
V. RAMKUMAR , J.
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W.P.(C) No. 32508 of 2008
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Dated this the 6th day of November, 2008.
JUDGMENT
The defendants in O.S. No. 51 of 2005 on the file of
Munsiff’s Court, Koyilandy challenge Ext.P8 order passed by the
learned Munsiff condoning the delay of 553 days in filing I.A. No.
140 of 2008 filed under Order 9 Rule 9 C.P.C for restoration of
the suit which was dismissed for default. The said suit filed by
the respondents herein is one for fixation of bounday. The suit
was dismissed for default. Even though the court below was not
happy with the inordinate delay in filing the restoration petition,
the court below was however, not inclined to hold that the
plaintiffs were guilty of gross negligence so as to disentitle them
from having the suit restored to file. The court, however, put the
plaintiffs on terms by directing them to pay a cost of Rs.1000/-.
It is the said order which is assailed in this writ petition filed by
the defendants.
2. The learned counsel appearing for the petitioners,
placing strong reliance upon the decision of the Apex Court in
W.P.(C) No. 32508/2008 : 2:
E.P. Srivastava v. R.K. Raizada & others (2000(3) SCC 54),
strenuously argued that the court below should not have
extended any indulgence to the plaintiffs who were guilty of gross
negligence. Even the observations in the decision cited by the
learned counsel are against the petitioners, since it is clearly
stated by the Apex Court that the court has wide discretion in the
matter of condonation of delay on the ground of sufficient cause.
I am not persuaded to interfere with the discretion exercised by
the learned Munsiff who was inclined to put the plaintiffs on
terms. However, having regard to the fact that the suit is
sufficiently old, the learned Munsiff shall make an earnest
endeavour to dispose of the suit expeditiously and at any rate
within six months of receipt of a copy of this judgment.
This writ petition is disposed of as above.
Dated this the 6th day of November, 2008.
V. RAMKUMAR, JUDGE.
rv
W.P.(C) No. 32508/2008 : 3:
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