IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 34744 of 2004(J)
1. INVEST CHIRS & GENERAL FINANCE (P)LTD.,
... Petitioner
Vs
1. KUNJI KAMMU, S/O.KUHAMMED HAJI,
... Respondent
For Petitioner :SRI.M.K.DILEEP KUMAR
For Respondent :SRI.BALAKRISHNAN GOPINATH
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :30/01/2007
O R D E R
M.N.KRISHNAN, J.
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W.P.(C)NO.34744 OF 2004
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Dated this the 30th day of January 2007
JUDGMENT
This writ petition is filed to quash Exts.P7 and P8 orders.
The plaintiff in O.S.881/2000 is the writ petitioner. As the
defendants remained ex-parte in the suit on satisfaction the
court granted a decree in favour of the plaintiff. The first
defendant moved an application I.A.406/2004 and another
application I.A.409/2004 to set aside the ex-parte decree after
condoning delay of 60 days in filing the application. A perusal of
the affidavit filed in support of the petition revealed that at the
time when the case was listed, the first defendant was living
abroad and he could not contact his lawyer. There was also a
delay of 60 days in filing the application for condoning the delay
in filing the application for setting aside ex-parte decree. Trial
court on consideration of the entire materials granted the prayer
of the defendants. It is a settled principle that one should not be
harsh on a petitioner and deny him the opportunity of hearing in
court merely because of some negligence. Such a drastic step
should be taken only where the degree of negligence is such that
W.P.(C)NO.34744 OF 2004
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cannot be condoned. In the case before me, the defendants had
satisfied the conscience of the court regarding the reason for
delay and also for the reason for non appearance before the
court when the suit was listed. There is no grave misconduct or
gross negligence. Therefore, the court was perfectly justified in
setting aside the ex-parte order after condoning the delay.
Therefore, this writ petition fails and it is dismissed.
M.N.KRISHNAN, JUDGE
jes