IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 19063 of 2006(T)
1. T.K.JACOB,
... Petitioner
Vs
1. FAMILY INN OFFICE AT T.C.4/424,
... Respondent
2. SMT.RACHEL OOMEN,
3. PRINCY JOHNSON, AGED 43, W/O.K.V.JOHNSON
4. MASTER RANA JOHNSON, AGED 17,
5. MISS.VEENA JOHNSON,
For Petitioner :SRI.J.HARIKUMAR
For Respondent :SRI.R.MANOJ
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :14/08/2009
O R D E R
P.S.GOPINATHAN, J.
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WP(C).No.19063 of 2006-T.
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Dated this the 14th day of August, 2009.
J U D G M EN T
Petitioner is the defendant in Ext.P1 suit, OS.No.314/1999, on the file
of the Additional Subordinate Judge, Thiruvananthapuram, for realisation of
a sum of Rs.1,46,252/-. Though summons was served upon the petitioner,
he failed to appear. Consequently, he was declared exparte. Later, he filed
Ext.P2 written statement stoutly contesting the suit, along with petition
IA.No.1238/2001 to set aside Ext.P1 exparte order. By Ext.P3, the petition
was allowed on condition that the petitioner should pay Rs.3,000/- within a
period of one month. According to the learned counsel, because of the
poverty, the petitioner could not pay the amount in time. So he sought for
further time. The trial court was not pleased to grant time. The petition was
dismissed by Ext.P3 for the reason that the cost was not paid in time.
Thereafter, the suit was decreed exparte. Seeking an order to set aside the
decree, petitioner filed Ext.P4 petition as IA.No.2304/2002. By Ext.P5 the
trial court dismissed the petition for the reason that the earlier opportunity
WP(C).No.19063 of 2006-T.
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was not availed by not paying the cost and that Ext.P4 petition is barred by
the principle of resjudicata. Assailing Ext.P5 order an appeal as
CMA.No.136/2003 was preferred before the District Court,
Thiruvananthapuram. The learned District Judge by Ext.P6 judgment found
that the petitioner was given sufficient opportunity but that was not availed,
though found that Ext.P4 petition is not barred by the principle of
resjudicata. Consequently, by Ext.P6 judgment the appeal was dismissed.
The correctness of the said judgment is canvassed in this writ petition.
2. Heard the learned counsel for the petitioner. It didn’t appear
that the failure to deposit the cost ordered by the trial court is due to any
reason other than the poverty as now contended. The trial court hasn’t
shown any reason not to grant extension of time sought by the petitioner. In
my opinion, the trial court should have given one more opportunity to meet
the ends of justice or the written statement should have been accepted with
liberty to the respondent to take steps to realize the cost by execution.
Having failed to rule out the possibility that the poverty prevented the
petitioner availing the earlier opportunity , as submitted by the learned
counsel for the petitioner and taking note that the petitioner had already
filed the written statement, I find that it would be just and appropriate to
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provide a further opportunity to the petitioner to defend Ext.P1 suit. The
inconvenience caused to the respondent can be compensated. In the result,
this writ petition is allowed. Ext.P6 judgment is set aside on condition that
the petitioner shall deposit Rs.3,000/- before the trial court as cost within
one month. On deposit of cost, Ext.P4 petition IA.No.2304/2002 would
stand allowed. In the event of failure to deposit cost within one month, this
petition would stand dismissed. No costs.
P.S.GOPINATHAN, JUDGE.
Kvs/-