IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 30309 of 2008(G)
1. M.K.UNNIKRISHNAN, S/O.JANAKI AMMA,
... Petitioner
Vs
1. THAYYIL PANKAJAVALLY,
... Respondent
For Petitioner :SRI.K.M.SATHYANATHA MENON
For Respondent :SRI.K.M.FIROZ
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :04/11/2008
O R D E R
THOMAS P. JOSEPH, J.
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W.P(c) No. 30309 of 2008
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Dated this the 4th day of November, 2008
JUDGMENT
Heard counsel on both sides.
2. Petitioner is the defendant in O.S. No.41 of 1998 of
the Court of Principal Munsiff, Kozhikode. Suit as originally filed was
for prohibitory injunction later amended as one for recovery of
possession as per order dated 24-01-2008. Petitioner/defendant filed
additional written statement on 11-02-2008. Case came up for trial in
the list on 5-06-2008. Respondent/plaintiff filed proof affidavit along
with 32 documents. According to the petitioner, he was present in the
trial court on 5-06-2008, but noting that he was absent, ex parte decree
was passed. That ex parte decree was challenged in A.S. No.157 of
2008 in the court of learned District Judge, Kozhikode. Learned
District Judge, for reasons stated in Exhibit P1, judgment allowed the
appeal and remanded the case to the trial court directing time bound
disposal. Time limit was also prescribed for the petitioner schedule of
his witnesses and documents. Petitioner was not able to comply with
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that direction within the specified time. After the time specified, he
filed I.A. Nos.3463 of 2008, 3464 of 2008 and 3381 of 2008 to issue
summons to his witnesses and receive documents (I am told that around
40 documents were produced by the petitioner). Learned munsiff as per
Exhibit P4 to P6 orders, dismissed those applications since petitioner
had not filed the schedule of witnesses and documents within the time
specified by the learned District Judge in Exhibit P1, judgment. In the
meantime after Exhibit P4 to P6 orders, petitioner also attempted a
chance before learned District Judge by filing I.A. No.1815 of 2008.
Since by that time learned munsiff had already disposed of the
applications vide Exhibit P4 to P6 orders, that application also was
dismissed. It is challenging Exhibit P4 to P6 orders that petitioner has
approached this court under Article 227 of the Constitution. Learned
counsel for petitioner states that petitioner may not have any further
documents to be produced and what is required is an opportunity to
prove his case. Counsel for respondent contends that there was latches
on the part of the petitioner in that neither did he produce the
documents and application for issue of summons within the stipulated
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time nor make a request for extension to the learned District Judge or
the learned munsiff before the expiry of that time.
3. It is true this is a suit of the year 1998, but the amendment
incorporating recovery of possession was allowed only on 21-01-2008.
It is seen that both sides have produced a number of documents in
support of their respective contentions. According to the petitioner, he
is a chronic patient and had to trace out documents from the year 1948
onwards which caused the delay. At any rate, learned District Judge
was inclined to set aside the ex parte decree and gave the petitioner an
opportunity to adduce evidence. In the circumstance, I am inclined to
give the petitioner an opportunity to adduce evidence but on payment
of cost which in the facts and circumstance of the case is fixed as
Rs.2,000/-.
Resultantly this writ petition is disposed of in the following lines.
1. Exhibits P4 to P6 orders will stand set aside and I.A
Nos. 3463 of 2008, 3464 of 2008 and 3381 of 2008
will stand allowed on condition that petitioner
deposited in the trial court for payment to the
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respondent cost of Rs. 2,000/-(Rupees Two Thousand
only) within one month from this day.
2. In case cost aforesaid is not deposited, this writ
petition will stand dismissed in confirmation of
Exhibits P4 to P6 orders.
3. In case petitioner deposited cost aforesaid, the case
will stand reopened and the munsiff shall expedite the
trial and disposal of the case.
THOMAS P. JOSEPH, JUDGE
scm