IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 5180 of 2007(N)
1. SIVARAJAN,S/O.PUSHKARAN,RESIDING AT
... Petitioner
Vs
1. SINDHU,W/O.SANTHOSHKUMAR,KARTHIKA NIVAS,
... Respondent
2. BHAMINI, RESIDING AT PADMAVILASATHU
For Petitioner :SRI.PIRAPPANCODE V.S.SUDHIR
For Respondent :SRI.K.B.PRADEEP
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :04/02/2008
O R D E R
M.N.KRISHNAN, J.
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W.P.(C). NO. 5180 OF 2007
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Dated this the 4thday of February, 2008
JUDGMENT
This writ petition is preferred with a prayer to set aside Ext.P10
order. Ext.P10 is an order passed by the II Additional Munsiff,
Thiruvananthapuram, in IA 2305/05 in OS 1229/99. The said application is
filed by the 1st defendant in the case to restore IA 10246/03. IA 10246/03
is filed to set aside the ex parte decree.
2. To start with, the averments in the affidavit appears to be that
the 1st defendant is swearing on behalf of the 2nd defendant as well and the
prayer was to set aside the ex parte decree. The court found that the
Advocate, who have filed the application, did not have vakalath on behalf of
the 2nd defendant. Therefore there was some directions to cure the
defects. In the process of curing defects, applications after applications
were filed and ultimately everything ended in dismissal.
3. Whatever it may be, now a situation has arisen where the
question is whether the application to restore the petition to set aside the
ex parte decree has to be restored or not. During the pendency of the
petition, 1st defendant died and the 2nd defendant has automatically become
a legal heir. I am informed by the learned counsel for the plaintiff that the
decree has been put into execution and a demarcating boundary has also
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been put up. The suit relates to immovable property and it is always
desirable that opportunities are given, if there are sufficient reasons to set
aside the ex parte decree. In this writ petition I am only concerned with the
restoration application. Whether there are sufficient grounds to set aside
the ex parte decree is a matter that has to be considered by the court
below after adducing evidence. But the plaintiff has been dragged on to
the court and therefore, I am inclined to allow IA 2305/05 by directing the
writ petitioners herein to pay cost of Rs.1,000/- to the plaintiff. If the said
cost is paid within a period of one month from today, the court below is
directed to restore IA 10246/03 and if any defects are to be cured, direct it
to be cured, afford equal opportunities to both parties to adduce both oral
and documentary evidence in support of heir respective contentions. If the
amount is not paid within the stipulated time mentioned above, the writ
petition will stand dismissed.
The writ petition is disposed of accordingly.
M.N.KRISHNAN, JUDGE
vps
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