IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 8044 of 2009(O)
1. PALLIYIL ENTHEENKUTTY,
... Petitioner
Vs
1. PERINKIPARAMBIL MOIDEEN HAJI,
... Respondent
For Petitioner :SRI.C.M.MOHAMMED IQUABAL
For Respondent :SRI.BIJU ABRAHAM
The Hon'ble MR. Justice K.T.SANKARAN
Dated :06/04/2009
O R D E R
K.T.SANKARAN, J.
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W.P.(C) No.8044 OF 2009
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Dated this the 6th day of April, 2009
JUDGMENT
The Writ Petitioner is the defendant in O.S.No.119/2004
on the file of the Munsiff Court, Tirur. The suit was decreed
exparte on 05.06.2008. The petitioner filed I.A.No.1389/2008
to set aside the exparte decree. The court below allowed the
application by the order dated 25.02.2009 on condition that
the petitioner shall pay Rs.5,000/- as costs on or before
12.03.2009. The petitioner challenges the condition for
payment of costs. It is submitted that the application to set
aside the exparte decree was filed within 30 days of the date
of passing the exparte decree. It is also pointed out that the
petitioner had gone to Goa and thereafter, he fell ill and
therefore, he could not attend the court. In these
circumstances, the petitioner contends that the court below
should have allowed the application without payment of costs.
2. The learned counsel for the respondent pointed out
that in paragraph 12 of the order, the court below held that
the petitioner failed to adduce reliable evidence to show that,
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he was actually prevented due to sufficient cause from
appearing before the court and that in such circumstance,
normally the petition is liable to be dismissed. However, the
court below has allowed the application on payment of costs of
Rs.5,000/-. He also submitted that a writ petition challenging
payment of costs should not be entertained.
3. The costs shall be in the discretion of the court.
Normally there would be no interference in the matter of
payment of costs. In the present case, I do not think that the
court below has committed any error in allowing the
application on payment of costs. But, taking into account the
facts and circumstances of the case, I am of the view that the
cost is slightly high. A sum of Rs.2,500/- as costs would have
been adequate compensation to the respondent for the
inconvenience caused to him.
4. Accordingly, the Writ Petition is allowed in part and
the order for payment of costs of Rs.5,000/- is modified as an
order for payment of costs of Rs.2,500/-. The petitioner shall
pay the costs of Rs.2,500/- to the respondent on or before
25.05.2009. If the petitioner fails to pay the costs within time,
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the Writ Petition shall be treated as dismissed and
I.A.No.1389/2008 shall also be treated as dismissed.
The Writ Petition is disposed of.
K.T.SANKARAN
JUDGE
pac