IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 29622 of 2008(B)
1. SAJI KUMAR, SREE NILAYAM, ULLANOOR MURI,
... Petitioner
2. RAJI ANILKUMAR, NISARIYIL, ULLANOOR MURI
3. BINDHU SAJI KUMAR, SREE NILAYAM,
Vs
1. K.K.SARACHANDRA BOSE, KURIYAN PALLIL,
... Respondent
2. ANIL KUMAR, NISARIYIL, ULLANOOR MURI,
For Petitioner :SRI.JACOB P.ALEX
For Respondent :SRI.RENJITH THAMPAN
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :24/06/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).NO.29622 OF 2008 (B)
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Dated this the 24th day of June, 2009
J U D G M E N T
The writ petition is filed under Article 227 of the
Constitution of India seeking the following reliefs:
i. to set aside Exts.P2 and P4.
ii. to allow Ext.P1 and direct the Munsiff
Court, Pathanamthitta to dispose
O.S.No.50/2001 on merits after setting aside
the ex parte decree therein.
iii. to issue such other appropriate writ, order
or direction as this Honourable court may
deem just and fit in the circumstances of the
case.
2. Petitioners are the defendants in O.S.No.50/2001 on
the file of the Munsiff’s Court, Pathanamthitta. Suit was one
for declaration, injunction both prohibitory and mandatory and
for damages. Suit was decreed ex parte. The
WPC.29622/2008 2
petitioners/defendants moved an application under Order IX
Rule 13 of CPC to set aside the ex parte decree. The case
advanced by the petitioners was that the 2nd petitioner was
prosecuting the case on behalf of all of them and since he was
laid up on account of illness, he could not present and defend
the case on the date when it was posted for hearing. A
medical certificate was also produced to prove the illness of
the 2nd petitioner/2nd defendant. The application was resisted
by the plaintiff contending that there is no merit in the cause
shown by the petitioners for their absence. It was further
contended that there were willful laches and deliberate
negligence on the part of the defendants in not appearing
before the court on the date when the suit was posted for
hearing. The learned Munsiff, after conducting the enquiry
over the petition, was not satisfied with the cause shown by
the petitioners/defendants with the result the application for
setting aside the ex parte decree was dismissed. In the
appeal preferred against the decree, the District Judge
concurred with the findings arrived by the learned Munsiff.
Impeaching the propriety and correctness of the order of the
WPC.29622/2008 3
learned Munsiff and also the judgment of the District Judge
the petitioners/defendants have filed the writ petition invoking
the supervisory jurisdiction vested with this Court under
Article 227 of the Constitution of India.
2. I heard the counsel on both sides. Having regard to
the facts and circumstances presented and also the
submissions made by the counsel on both sides, it appears that
a further opportunity can be extended to the defendants to
have a decision on merits compensating the injury that is
likely to be suffered by the respondent/plaintiff in setting aside
a decree which had been passed nearly eight years ago.
Having regard to the fact that the respondents/plaintiff had to
come from abroad to give evidence in the case, I find it would
be proper and appropriate to fix a sum of Rs.10,000/- as cost
payable by the petitioners/defendants as a condition precedent
for setting aside the ex parte decree. The petitioners shall pay
the cost as fixed above to the counsel for the respondents
within one month from today. If cost is paid as directed, the
ex parte decree passed in the suit shall stand set aside. If not,
WPC.29622/2008 4
the writ petition shall stand dismissed without any further
orders. With the above directions, this writ petition is
disposed.
Post for report after one month.
S.S.SATHEESACHANDRAN
JUDGE
prp
S.S.SATHEESACHANDRAN, J.
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CRL.R.P.NO. OF 2006 ()
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O R D E R
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23rd March, 2009