IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 1648 of 2007(U)
1. GEETHAKUMARI N.K., AGED 45 YEARS,
... Petitioner
Vs
1. R.JEEVAN, AGED 43 YEARS,
... Respondent
For Petitioner :SRI.MANJERI SUNDERRAJ
For Respondent :SRI.R.S.MOHANAN NAIR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :07/08/2008
O R D E R
M.SASIDHARAN NAMBIAR,J.
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W.P.(C) NO.1648 OF 2007
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Dated this the 7th day of August, 2008
JUDGMENT
This petition is filed under Article 227 of the
Constitution of India challenging Exts.P9 and P10
orders passed by the Sub Court, Thiruvananthapuram
in I.A.3304/2004 and 4257/2004. O.S.492 of 2002 is
a suit for specific performance of an agreement for
sale. That suit was decreed ex parte on 31.1.2004.
Respondent thereafter filed Ext.P5 petition
(I.A.3304/2004) on 31.7.2004 to set aside the ex
parte decree under Rule 13 of Order IX of Code of
Civil Procedure contending that respondent did not
receive any summons and came to know about the
decree only when he returned back home on
30.7.2004. Ext.P8 (I.A.4257/2004) was subsequently
filed on 29.9.2004 under section 5 of the
Limitation Act to condone the delay in filing
Ext.P5 application. Petitioner filed objection to
both the petitions. Learned Sub Judge allowed the
W.P.(C)1648/2007 2
applications under Exts.P9 and P10 orders. Under
Ext.P9 order the delay was condoned as follows:-
"Heard. I.A. Allowed on a
costs of Rs.500/-. For
payment of costs. Call on
17.8.2006."
On 19.8.2006 I.A.3304/2004 was allowed under
Ext.P10 order and the ex parte order was set
aside. The order reads:-
"Costs remitted. I.A.
Allowed. Ex parte order set
aside as prayed for. I.A.
Closed.
Learned counsel appearing for petitioner argued
that learned Sub Judge did not consider the
objections filed by the petitioner to both the
petitions and question whether there is
sufficient cause to condone the delay in filing
the application or to set aside the ex parte
decree was not considered at all. It was also
argued that I.A.3304/2004 was allowed on the
W.P.(C)1648/2007 3
ground that cost was remitted without considering
the question whether there was sufficient cause
for the absence of the respondent when the suit
was decreed ex parte.
2.Learned counsel appearing for respondent
argued that respondent did not receive any summons
and came to know about the proceedings only when
he returned back to India and immediately
petitions were filed and in such circumstance, the
ex parte decree was set aside after condoning the
delay. Learned counsel appearing for petitioner
submitted that Ext.P2 letter sent by the
respondent to his sister-in-law a practising
lawyer which was produced before the Sub Court by
the said sister-in-law on 15.10.2003 establish
that respondent was aware of the suit and in such
circumstance learned Sub Judge was not justified
in condoning the inordiante delay.
3. There is force in the submission made by
learned counsel appearing for the petitioner.
When the ex parte decree is sought to be set aside
W.P.(C)1648/2007 4
contending that respondent/defendant did not
receive the summons and was not aware of the suit
or the decree and petitioner plaintiff resisted
the petition contending that respondent was aware
of the suit and in fact authorised his sister-in-
law to appear on his behalf and she appeared
before the court, learned Sub Judge was not
justified in setting aside the ex parte decree
without considering these facts. Ext.P10 order
shows that learned Sub Judge did not consider
either the sufficiency of the ground stated in the
petition or the objection raised by the
petitioner. Instead petition was seen allowed as
if cost was awarded earlier. In that application
no cost was awarded. Cost was awarded in the
application to condone the delay. Even if the
delay is condoned, court has to satisfy that there
are sufficient grounds to set aside the ex parte
decree. There was not even an attempt to consider
that question. Ext.P10 order on the face of it is
not sustainable.
W.P.(C)1648/2007 5
4. Similarly Ext.P9 order shows that
contention raised by the respondent to condone the
delay or the objection raised by the petitioner
why the delay cannot be condoned, were not
considered by learned Sub Judge. Instead without
considering any of the grounds, petition is seen
allowed on terms. Ext.P9 order also bad in law.
5. Exts.P9 and P10 orders are quashed. Sub
Judge, Thiruvananthapuram is directed to
reconsider I.A.4257/2004 and I.A.3304/2004 and
pass appropriate order in accordance with law.
Writ Petition is disposed of as above.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
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JUDGMENT
SEPTEMBER,2006