IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 176 of 2007(U)
1. THE LIONS CLUB OF PERINTALMANNA
... Petitioner
Vs
1. JACOB.T.PERCY, S/O.JACOB, AGED ABOUT
... Respondent
2. LALY VARGHEESE, S/O.VARKEY JOHN,
3. K.M.LOUKOSE, S/O.MATHEWS,
4. PULAMANTHOLE SERVICE CO-OPERATIVE BANK,
For Petitioner :SRI.SAJEEV KUMAR K.GOPAL
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :02/01/2007
O R D E R
M.SASIDHARAN NAMBIAR, J.
...........................................
W.P.(C)No.176 OF 2007
............................................
DATED THIS THE 2nd DAY OF JANUARY, 2007
JUDGMENT
Petitioner is the plaintiff and respondent is the
defendant in O.S.48 of 2001 on the file of Sub Court,
Manjeri. Under Ext.P6 order, the exparte decree as
against defendants 1 to 3 were set aside by learned Sub
Judge. Ext.P6 order is challenged in this petition
filed under Article 227 of Constitution of India. The
contention of petitioner was that Ext.P3 judgment shows
that defendants 1 to 3 were not set exparte and it is a
judgment on merit and therefore the decree should not
have been set aside under Order IX Rule 13 of Code of
Civil Procedure. It was also contended that even if the
decree was exparte, there are no sufficient grounds to
set aside the decree as the medical certificate
produced by petitioner shows that first defendant was
laid up only for seven days.
2. Learned counsel appearing for the petitioner
was heard.
3. Ext.P3 judgment itself shows that when the case
was included in the special list and taken up for
WP(C)176/2007 2
evidence, an application for adjournment was moved by
the defendants 1 to 3 on the ground that first
defendant was laid up. Learned Munsiff refused the
adjournment sought for. Thereafter learned counsel
appearing for defendants 1 to 3 reported no
instructions. Defendants 1 to 3 were not present at
the time of trial. Though technically defendants 1 to 3
were not set exparte by a specific order by learned Sub
Judge, in fact defendants 1 to 3 were exparte and they
did not participate in the trial at all. In such
circumstances, learned Sub Judge under Ext.P6 order
rightly found that decree as against defendants 1 to 3
was exparte decree and therefore it can be set aside
under Order IX Rule 13 as against defendants 1 to 3 if
sufficient cause for their absence was shown.
4. The specific case of defendants 1 to 3 was
that first defendant was contesting the suit and first
defendant was laid up when the decree was passed. The
illness was supported by a medical certificate. Though
adjournment was sought for on the ground of illness,
learned Sub Judge was not satisfied with the grounds
and hence adjournment was refused. But that is not a
WP(C)176/2007 3
reason to hold that first respondent/defendant was laid
up. Learned Sub Judge appreciating the facts in the
proper perspective found that first defendant was laid
up and hence could not appear or contest the case. In
such circumstances, exparte decree was set aside under
Ext.P6 order. I do not find any reason to interfere
with that order, in exercise of the extra ordinary
jurisdiction of this court under Article 227 of
Constitution of India. The learned Sub Judge is
directed to dispose the suit as expeditiously as
possible, and at any rate within six months from the
date of receipt of a copy of this judgment.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-