IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 28191 of 2009(O)
1. ANNEY AGED 49, W/O. WILSON,
... Petitioner
Vs
1. EMELDA, AGED 52 YEARS,
... Respondent
For Petitioner :SRI.T.M.CHANDRAN
For Respondent :SRI.T.R.RAJAN
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :25/11/2010
O R D E R
HARUN-UL-RASHID, J.
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W.P.(C).No.28191 Of 2009
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Dated this the 25th day of November, 2010.
J U D G M E N T
The writ petition is filed seeking the following reliefs:
i) To call for the records relating to Exhibits
P1 to P5.
ii) to issue appropriate writ or order and set
aside Ext.P4 order and Ext.P5 judgment passed by
the courts below.
iii) To issue appropriate orders allowing all the
prayers sought for in Exts.P1 and P2 petitions filed by
the petitioner.
iv) To stay all further proceedings in
E.P.No.259/2008 in O.S.No.675/2005 on the file of
the Principal Munsiff Court, Kollam.
2. Petitioner is the defendant in O.S.No.675 of 2005 on
the file of the Principal Munsiff Court, Kollam. The respondent is
the sister of the petitioner. Suit was filed by the respondent as
plaintiff for eviction. The petitioner is admittedly residing in the
house situated in the plaint schedule property. The petitioner
entered appearance in the suit. During that time all the family
members assembled together in the house of the petitioner in
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connection with the death anniversary of the mother of the
petitioner, and the relatives wanted the petitioner and
respondent to settle the dispute between them. The petitioner
alleges that the dispute between the parties was settled at the
mediation of the relatives on that day. On that basis the plaintiff
agreed to withdraw the suit whereby allowing the defendant to
stay in the residential house situated in the plaint schedule
property. It is further stated that believing the assurances and
undertaking given by the plaintiff, the petitioner/defendant did
not thereafter appear in the suit. She also took the case file from
the lawyer instructing the lawyer not to defend the suit in view of
the settlement of the dispute. It is also averred that
subsequently, the petitioner came to know that the plaintiff did
not withdraw the suit as agreed, but, prosecuted the suit and the
suit is decreed ex-parte on 31.5.2006. It is stated that the
petitioner came to know about the ex-parte decree only when she
received notice in the execution petition which was served to the
petitioner on 22.11.2008. on getting information about the ex-
parte decree the petitioner filed I.A.Nos.18 & 19 of 2009 seeking
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to set aside the ex-parte decree and to condone the delay in filing
the petition to set aside the ex-parte decree. Exts.P1 & P2 are
the copies of the I.As.
3. The respondent/plaintiff seriously opposed the prayer.
Respondent contended that the reasons stated for belated filing
of the application for setting aside the ex-parte decree is not
correct. The respondent denied that there was no settlement
arrived at between them. It is contented that the reasons stated
is false, that there was no necessity for the lawyer of the
defendant to relinguish vakalath in a case where there was an
agreement to withdraw the suit. The respondent vehemently
opposed the application stating that the averments in the
affidavit filed in support of the I.As are not true facts and the
averments was inserted to suit the petitioner’s convenience.
4. The learned Munsiff dismissed the I.As stating that
absolutely no evidence was adduced to prove that there was an
agreement entered into between the parties for withdrawal of the
suit. The court also observed that the reason shown in the
petition is not sufficient or good reason to condone the delay
W.P.(C).No.28191 Of 2009
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caused in the case. Both the applications were dismissed. The
defendants preferred C.M.A.No.44 of 2009 challenging the order
passed by the learned Munsiff. The appellate court also
disbelieved the case of the defendant that there was a settlement
talk between the parties at the mediation of relatives and that
the applications are filed belatedly only because she came to
know about the passing of the ex-parte decree at the time when
she received notice in the execution petition. Thus, both courts
disbelieved the version of the defendant. Having failed to rely on
the averments in the affidavit filed in support of the respective
petition the courts held that the petitioner is not entitled to the
relief sought for.
5. Ext.P4 is the order passed by the learned Munsiff and
Ext.P5 is the judgment passed by the learned District Judge. The
dispute in this case is between two sisters. It is a family dispute.
It is not known for what reasons the petitioner/defendant did not
continue to prosecute the suit. It is a fact that the suit was not
contested and one sister got an ex-parte decree against the
other. I cannot re-appreciate the evidence on record in this
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proceedings. It is a fact that suit was decided ex-parte. That
means there was no consideration of the matter on merits.
Taking a liberal view the courts below should have granted an
opportunity to the petitioner to contest the case on terms. This
is a case where the petitioner/defendant is residing in the plaint
schedule property. The suit was for eviction. Unless there is
some compelling reasons, normally the petitioner/defendant
should have contested the suit. The reasons stated by her in the
affidavit may be or may not be true. Since the suit itself is for
eviction of the petitioner/defendant from the residential house
situated in the plaint schedule property, in the interest of justice,
an opportunity shall be given to the petitioner/defendant to
contest the case on merits on payment of cost.
6. Accordingly, I.A.Nos.18 & 19 of 2009 are allowed.
Exts.P4 & P5 orders are set aside, on condition that the petitioner
shall pay Rs.5,000/- (Rupees Five Thousand only) as cost to the
counsel for the respondent within a period of two weeks from
today. If the cost ordered is not paid within the time fixed by
this Court, the impugned orders shall stand confirmed. Since the
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suit is of the year 2005, there will be a further direction to the
trial court to try and dispose of the suit on an early date, at any
rate, within a period of nine months from the date of receipt of a
copy of this judgment. Parties shall appear before the court
below on 15.12.2010.
The writ petition is disposed of as above.
HARUN-UL-RASHID,
Judge.
bkn/-