IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 6TH FEBRUARY 2008 / 17TH MAGHA 1929 WP(C).No. 4426 of 2008(B) -------------------------------------- OS.59/2001 of MUNSIFF COURT, KODUNGALLUR .................... PETITIONER: ------------------- RAGHAVAN ,S/O.EDASSERY KRISHNANKUTTY AGED 68 YEARS, KAIPPAMANGALAM VILLAGE & DESOM KODUNGALLUR TALUK, THRISSUR DISTRICT. BY ADV. DR.V.N.SANKARJEE, SRI.V.N.MADHUSUDANAN, SMT.R.UDAYA JYOTHI, SRI.BABU. E.A.U. RESPONDENT: ---------------------- AMBILI,W/O.IYYANI SATHEESH KUMAR EDATHIRUTHY VILLAGE & DESOM, KODUNGALLUR TALUK, THRISSUR DISTRICT. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/02/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = W.P.C. NO. 4426 OF 2008 = = = = = = = = = = = = = = = Dated this the 6th day of February, 2008. J U D G M E N T This writ petition is preferred against the order of the Subordinate Judge, Irinjalakuda in CMA 25/06. CMA 25/06 was preferred against the order in I.A.Nos. 1643/05 and 1644/05 in O.S.59/01 whereby the defendant in the suit filed an application to set aside the exparte order with a petition to condone the delay. The trial court did not find in favour of condoning the delay and therefore dismissed the delay condonation application as well as the petition to set aside the exparte order against that the above CMA was preferred. The learned Subordinate Judge allowed the application on payment of costs of Rs.2,000/-. It is against that decision the present writ petition is preferred. The learned counsel for the writ petitioner has brought to my notice certain observations made by the Court while disposing of the CMA. I feel the learned Subordinate Judge W.P.C 4426 OF 2008 -:2:- should not have expressed any view on the merits of the case when he was giving opportunity to the other side to contest the case on merits. The Court observed that a perusal of the copy of the plaint will show that the suit is barred by limitation. The Court therefore went on to hold that the appellant should not suffer a decree which is not valid in law. These observations are really unwarranted in a case where the Court was only concerned about the question whether there are sufficient reasons for condoning the delay and whether there are grounds to set aside the exparte decree. It is a settled principle that if the party is not grossly negligent or guilty of grave misconduct interest of justice mandates an opportunity to be given for hearing the case on merits. The Court should have dealt with that and disposed of the matter instead of making observations which really cuts at the root of the case of the plaintiff in an application which is filed by the defendant for setting aside the exparte decree. Therefore I make it very clear that the said observations made by the Subordinate Judge shall not be W.P.C 4426 OF 2008 -:3:- taken as a guiding factor for determination of the case on merits. Since the learned judge has used discretion giving an opportunity to be heard I decline to interfere with the order passed by him and therefore the writ petition is dismissed with these observations. M.N. KRISHNAN, JUDGE. ul/-