IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 3037 of 2010(O)
1. LEELAVATHY, W/O. VELAYUDHAN, MANITHOTTIL
... Petitioner
Vs
1. SUBHALAKSHMI, W/O. MYIL SWAMI,
... Respondent
For Petitioner :SRI.SAJAN VARGHEESE K.
For Respondent :SRI.RAJESH SIVARAMANKUTTY
The Hon'ble MR. Justice P.BHAVADASAN
Dated :11/03/2010
O R D E R
P.BHAVADASAN, J.
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WP(C) No.3037 of 2010-O
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Dated 11th March 2010
Judgment
In this Writ Petition filed under Article 227 of the
Constitution of India, the petitioner seeks the following
reliefs :
“i. call for the records relating to Exts.P5 to P7 and P9 to
P11.
ii. set aside Ext.P11 and allow Exts.P6 and P7 as prayed for
and permit the petitioner to contest the case viz. OS
No.143/06 on the file of Subordinate Judge’s Court,
Palakkad on merits.”
2. The petitioner is the defendant in OS
No.143/06 before the Sub Court, Palakkad, which is a suit
for realisation of money based on a mortgage deed. Copy
of the plaint in the suit is produced as Ext.P1. It is claimed
that the petitioner entered appearance and filed a written
statement. She also produced several documents which
would indicate that she had no liability to pay any amount
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to the plaintiff. The petitioner submits, when the case was
listed on 09.07.2008, since she was ill and was undergoing
treatment, she could not attend the Court. That resulted in
the Court below passing an ex parte decree. The decree
was passed enabling the plaintiff to realise a sum of
Rs.1,37,200/- with 6% interest. As soon as the petitioner
came to know about the passing of the ex parte decree,
she filed IA No.3959/08 seeking to set aside the same,
along with an application for condonation of delay in filing
the IA. Those applications are produced as Exts.P3 and
P4. The Court below allowed the said applications on
condition that the petitioner should pay a sum of Rs.2,000/-
to the respondent within a period of ten days. A copy of the
said order is produced as Ext.P5. But, the petitioner
submits, for reasons beyond her control, she failed to pay
the amount within the time stipulated in the order.
Thereafter, she filed two applications, IA No.2445/09 to
restore Ext.P3 application and IA No.2444/09 to condone
the delay in filing it. Those applications were dismissed by
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the Court below by Ext.P11 order. The said order is
assailed in this Writ Petition.
3. The learned counsel for the petitioner pointed
out that the prayers made in the two IAs namely 2444/09
and 2445/09 are only just and proper and all that was
intended was to seek extension of time to make the
payment, which was ordered to be paid within ten days. It
is also claimed that the petitioner has got valid contentions
to be urged in the suit. The petitioner submits that if she is
not given an opportunity to contest the case, irreparable
loss and injury will be caused to her.
4. The learned counsel for the respondent, on
the other hand, pointed out that the matter is unnecessarily
being dragged by the petitioner with the intention of
denying the fruits of the decree to the plaintiff. The claim
made by the petitioner that due to reasons beyond her
control, she could not make the payment as directed by
the Court below, is not justified. Moreover, it is stated that
the order directing payment, is a self working order.
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5. Whatever that be, the fact remains that the Court
below was inclined to set aside the ex parte decree on
condition that the petitioner pays a sum of Rs.2,000/- to the
respondent within ten days failing which the application
was to stand dismissed. This shows that the Court below
was impressed that there is some basis for the case put up
by the defendant in the suit. Whether she will be able to
substantiate her claim or not, is a different question. But,
no irreparable injury will be caused to the plaintiff by giving
an opportunity to the defendant to contest the case and
have it decided on merits. The fact remains that the
defendant is an old lady and therefore, her claim that she
was ill and as she was undergoing treatment and so, she
could not make the payment within the time stipulated,
cannot be ignored. One must remember that she has
suffered an ex parte decree. It is unreasonable to believe
that she would have deliberately taken the risk of non-
payment of the amount and thereby suffer dismissal of her
application. Considering the above facts, it is felt that the
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defendant should be afforded an opportunity to contest the
case on merits. Accordingly, the impugned order is set
aside. The suit is restored to file and the Court below is
directed to dispose of the suit as expeditiously as possible
at any rate, within six months from the date of receipt of a
copy of this Judgment. The amount of Rs.2,000/- directed
to be paid by the petitioner shall be deposited by her before
the Trial Court within three weeks from today.
The Writ Petition is disposed of as above.
P.BHAVADASAN, JUDGE
sta
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