IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 35362 of 2009(O)
1. REMESH RAMAN PILLAI, S/O.P.G.RAMANPILLAI
... Petitioner
Vs
1. SREEKUMARI, AGED 56 YEARS,
... Respondent
2. GANESH RAMAN PILLAI, AGED 51 YEARS,
3. JAGEDIS RAMAN PILLAI, AGED 49 YEARS,
For Petitioner :SRI.M.DINESH
For Respondent :SRI.M.K.SATHEESA VARMA
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :04/10/2010
O R D E R
HARUN-UL-RASHID, J.
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W.P.(C).No.35362 Of 2009
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Dated this the 4th day of October, 2010.
J U D G M E N T
Petitioner is the defendant in O.S.No.918 of 2008 on the file
of the Principal Sub Court, Kollam. Suit was filed by the
respondents for partition. Suit was posted on 19.6.2009 for
appearance of the defendant. The petitioner is the sole
defendant in the suit. He entered appearance and prayed for
time to file written statement. Case was adjourned to 15.9.2009
with a direction that no further time for filing written statement
will be granted. On 15.9.2009 the defendant’s counsel submitted
that the written statement is being filed. The court adjourned the
case to 23.11.2009. The petitioner filed the written statement on
17.11.2009. I.A.No.3933 of 2009 is filed to accept the written
statement and for enlarging the time for filing written statement.
Ext.P3 is the written statement and Ext.P5 is the petition for
enlargement of time. The matter was taken up on 23.11.2009.
On that day the court passed Ext.P6 order. The court observed
that on 15.9.2009 the defendant’s counsel submitted that the
written statement is being filed and therefore the case was
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posted for framing issues to 23.11.2009. The court further
observed that it is curious to note that written statement along
with a petition was filed on 17.11.2009. The court did not accept
the written statement nor enlarged the time for filing the written
statement.
2. The dismissal of Ext.P5 petition, no doubt, will cause
serious hardship to the petitioner. The petitioner is precluded
from defending the suit effectively. The respondents filed the suit
for partition. The petitioner is working at Maharashtra. He
appeared through his power of attorney holder on 19.6.2009. It
is true that the written statement was not filed on 15.9.2009 but,
the same was filed on 17.11.2009. There is a delay of about one
month in filing the written statement. Ext.P5 was filed for
enlarging the time for filing written statement. The court should
have considered Ext.P5 petition more liberally. In stead the court
refused to accept the reasons stated in Ext.P5 and dismissed the
petition. Whatever be the reason for not filing the written
statement in time, I feel that, in the interest of justice, the
petitioner shall be given an opportunity to contest the case on
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merits. The court below could have accepted the reasons and
should have proceeded the matter on merits. I do not find any
justification in not allowing Ext.P5 I.A. Therefore Ext.P5 I.A is
allowed. Ext.P6 order is set aside and further directs the court
below to proceed with the case in accordance with law.
Writ petition is disposed of as above.
HARUN-UL-RASHID,
Judge.
bkn/-