IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 22354 of 2010(O)
1. SADIDHARAN, S/O.SANKUNNI,
... Petitioner
Vs
1. GOPALAKRISHNAN, S/O.KARUNAKARAN,
... Respondent
For Petitioner :SMT.P.V.KOCHUTHRESIA
For Respondent :SRI.P.SIVARAJ
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :11/10/2010
O R D E R
THOMAS P JOSEPH, J.
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W.P(C).No.22354 of 2010
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Dated this 11th day of October, 2010
JUDGMENT
Exts.P5 and P6, orders dismissing Exts.P3 and P4,
applications are under challenge in this petition. Respondent filed
O.S.No.769 of 2008 in the court of learned Principal Sub Judge,
Kollam for realisation of money and an ex parte decree was passed
against petitioner on 11-06-2009. Petitioner filed Ext.P2,
application to set aside the ex parte decree. I am told that the
written statement also was filed in the meantime. Ext.P2,
application was dismissed for default on 29-09-2009. Thereon,
petitioner filed Ext.P3, application to set aside dismissal of Ext.P2,
application and Ext.P4, application to condone the delay of 74days
in filing Ext.P3, application. Exts.P3 and P4, applications were
dismissed as per Exts.P5 and P6. Hence this petition. Learned
counsel contended that it was on account of an omission on the part
of clerk of the counsel in taking steps that Exts.P3 and P4,
applications happened to be dismissed.
2. I have gone through Ext.P6, order dismissing Ext.P4,
application (I.A.No.150 of 2010) to condone the delay. Learned
Principal Sub Judge has observed that there is no proper
W.P(C).No.22354 of 2010
: 2 :
explanation for the delay and hence the application is only to be
dismissed.
3. I have gone through the affidavit in support of Ext.P4,
application. It is stated that the advocate clerk who was instructed
to take steps had left the job without giving prior information to the
advocate of petitioner in the trial court and hence the omission to
take necessary steps in the matter. I am persuaded to think that
absence of petitioner on 29-09-2009 when Ext.P2, application was
taken up for hearing is explained. I am also satisfied that the delay
in filing Ext.P3, application is explained. Hence I am inclined to
allow this application and Exts.P3 and P4, applications.
Accordingly this petition is allowed in the following lines:
(i) Exts.P5 and P6, orders dismissing
Exts.P3 and P4, applications are set aside and
those applications will stand allowed.
(ii) Ext.P2, application will stand restored
to file.
(iii) Learned Sub Judge shall proceed with
Ext.P2, application as provided under law and pass
appropriate orders on merit.
(THOMAS P JOSEPH, JUDGE)
Sbna/-