High Court Kerala High Court

Leelavathy vs Subhalakshmi on 11 March, 2010

Kerala High Court
Leelavathy vs Subhalakshmi on 11 March, 2010
       

  

  

 
 
  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

————————————-
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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