IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 31116 of 2008(D)
1. THANKAPPAN AND ANOTHER
... Petitioner
Vs
1. SUJATHA SHA AND 6 OTHERS
... Respondent
For Petitioner :SRI.ALEX N.MATHEW (KOLLAM)
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :22/10/2008
O R D E R
THOMAS P. JOSEPH, J.
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W.P(c) No. 31116 of 2008
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Dated this the 22nd day of October, 2008
JUDGMENT
Heard.
2. Writ Petitioner is the plaintiff in O.S. No.228 of 1996 of the
Court of Munsiff-Magistrate, South Paravur (Kollam District). That suit
was for declaration of title and other reliefs. Respondents/defendants were
set ex parte and an ex parte decree and judgment followed in favour of the
Petitioner/plaintiff on 31/08/2007. First respondent/Additional 9th
defendant filed I.A. No.1287 of 2007 to set aside the exparte decree
(application dated 20/08/2007) and I.A.No.1286 of 2007 to condone the
delay (15 days). The applications were filed through her Power of Attorney
Holder. Learned Munsiff-Magistrate allowed I.A. No.1286 of 2007 as per
Exhibit P6 order and condoned the delay. Petitioner /plaintiff is aggrieved
and has come to this court for invoking the power under Article 227of the
Constitution.
3. Learned counsel submits that though the first
respondent/Additional 9th defendant had entered appearance personally,
I.A. Nos 1286 of 2007 and 1287 of 2007are field though her Power of
Attorney Holder, but no written authority is obtained from the court and
W.P.(C) No.31116 /2008
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therefore those applications ought to have been dismissed. Learned counsel
referred to me Rule 22(2) of Civil Rules of Practice.
4. Rule 22(2) of Civil Rules of Practice has no application to the
facts of the case since that provision refers to appearance of parties in court
through recognised agents. It was so held in Varkey Vs. Nenshi Devshi
Kathawala Ltd. [1963 K.L.T 463]. That I.A. Nos.1286 of 2007 and 1287 of
2007 are signed on behalf of the first respondent by his Power of Attorney
Holder does not amount to appearance in court in the way understood in
Rule 22(2) of the Civil Rules of Practice. Hence, that provision cannot
apply. The order under challenge states that the Power of Attorney has
already been produced in the court.
5. Next contention is that the application ( I.A. No.1287 of 2007)
is not to set aside the ex parte ‘decree’ but to set aside the exparte ‘order’.
Though, there appears to be some mistake on the dates mentioned in the
affidavit in support of I.A. No.1287 of 2007, on reading that application it
can be seen that the prayer is to set aside the exparte decree. This is a mater
of course which the court below can consider while considering the request
as per I.A. No. 1287of 2007.
6. Further contention is that the delay in filing I.A. No.1287 of
W.P.(C) No.31116 /2008
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2007 is not properly explained. Delay involved is only 15 days. It is stated
in para 5 of the affidavit in support of I.A. No.1286 of 2007 that the Power
of Attorney Holder was laid up due to hepatitis from 20/08/2007 to
24/09/2007. The Court below found that the delay is properly explained. I
do not find any gross negligence or willful latches on the part of first
respondent in not filing the application in time. This court is also not
required while exercising power under Article 227 of the Constitution to
interfere with the discretion exercised by learned Munsiff Magistrate. There
is no merit in this petition.
The writ Petition is therefore, dismissed.
THOMAS P. JOSEPH, JUDGE
scm