Gopalakrishnan Nair vs Vijayakumaran Nair on 15 January, 2008

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 1771 of 2008(J)


1. GOPALAKRISHNAN NAIR,
                      ...  Petitioner

                        Vs



1. VIJAYAKUMARAN NAIR, S/O.SANKARA PILLAI,
                       ...       Respondent

                For Petitioner  :SRI.G.P.SHINOD

                For Respondent  : No Appearance

The Hon'ble MR. Justice M.N.KRISHNAN

 Dated :15/01/2008

 O R D E R
                             M.N.KRISHNAN, J.
                             --------------------------
                         W.P.(C). NO. 1771 OF 2008
                                ---------------------
                 Dated this the 15th day of January, 2008

                                  JUDGMENT

This writ petition is preferred against the order of the

Subordinate Judge, Neyyattinkara, in IA 878/06 in OS 35/00. The petition

is one for setting aside the ex parte order in the suit for specific

performance. As the defendant did not enter appearance, the court was

pleased to decree the suit as ex parte. In the restoration application, the

ground alleged is that just prior to the date of trial to the case, the

defendant had fallen down on account of high blood pressure and was

admitted in the hospital. Then an application was moved for an

adjournment. Subsequently as he had to undergo further treatment with

the Doctor, he was unable to attend the court, which resulted in an ex parte

decree. It is true that there is a mistake committed by the Doctor in putting

the date as 19.5.05 instead of 19.5.06. But the fact remains that he has

been treated for ailment and the Doctor has stated that the difference in

date must be only a mistake. This court in the decision reported in

Sreedhara Kurup v. Mickel [1968 KLT 599] has given the guidelines,

which reads as follows:

“It is largely a matter of wise discretion to be exercised by
the Court bearing in mind the wholesome principle that the
right of a party to be heard should be negatived only if there
is gross negligence or gross carelessness and that if some
steps have been taken and application for restoration has

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been made with some diligence and some evidence
adduced making out a sufficient cause for absence,
restoration should be ordered, minor misconduct or laches
being corrected by the common curative of costs. The
brooding spirit of natural justice must be in the background
while ascertaining where there is sufficient cause.”

2. From the facts it is clear that in this case the defendant

wanted to conduct the case. He moved an application for adjournment.

Later, there is evidence to show that he developed high blood pressure and

as a result had fallen down and was under treatment. To prove that he

had examined witnesses before the court. So there has been proper

movement in the right direction by the defendant in the case, for setting

aside the ex parte decree. It is true that it is not very well discussed in the

order of the court below but the fact remains that the defendant is not

grossly negligent or has committed any grave misconduct in prosecuting

the case. Therefore as laid down in the decision referred to above, an

opportunity has to be given to the defendant.

Therefore, I do not find any ground to interfere with the order

passed by the court below and the writ petition is dismissed.

                                                     M.N.KRISHNAN, JUDGE

vps

WPC NO 1771/08    3