IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 4TH FEBRUARY 2008 / 15TH MAGHA 1929 WP(C).No. 5180 of 2007(N) ------------------------- OS.1229/1999 of II ADDL.M.C.,TRIVANDRUM .................... PETITIONER: ---------------------- SIVARAJAN,S/O.PUSHKARAN,RESIDING AT PADMAVILASATHU VEEDU,THIUVALLAM VILLAGE, THIRUVANANTHAPURAM. ( D I E D). *ADDL.PETITIONERS 2 TO 4 ARE IMPLEADED: P2. BHAMINI SIVARAJAN, W/O.LATE SIVARAJAN, MINI LAND HOUSE, T.R.A.E.122, S.N.NAGAR, THURUVICKAL P.O., ULLOOR, THIRUVANANTHAPURAM. P3. PARVATHY JOSHY, MINI LAND HOUSE, T.R.A.E. 122, S.N.NAGAR, THURUVICKAL P.O., ULLOOR, THIRUVANANTHAPURAM. P4. SIVASANKAR B.S., MINI LAND HOUSE, T.R.A.E.122, S.N.NAGAR, THURUVICKAL P.O., ULLOOR, THIRUVANANTHAPURAM. (*ADDL.PETITIONERS P2 TO P4 ADDED AS PER ORDER DTD. 6/09/07 IN I.A.NO.10710/07) BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR Kss ..2/- ...2..... WPC.NO.5180/2007 N RESPONDENTS: -------------------------- 1. SINDHU,W/O.SANTHOSHKUMAR,KARTHIKA NIVAS, KUIKATTU LANE,MANUKULADITIYA MANGALAM, NEMOM, THIRUVANANTHAPURAM.' * * 2. BHAMINI, RESIDING AT PADMAVILASATHU VEEDU,PACHALLOOR DESOM, THIRUVALLAM VILLAGE, THIRUVANANTHAPURAM DISTRICT. (D E L E T E D). ** 2ND RESPONDENT IS DELETED AS PER ORDER DTD. 6/09/07 IN I.A.NO.10711/07. R1 BY ADV. SRI.K.B.PRADEEP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.5180/2007 N APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN O.S.NO.1229/1999. EXT.P2: COPY OF THE WRITTEN STATEMENT IN OS.NO.1229/99. EXT.P3: COPY OF THE APPLICATION FILED BY THE 1ST RESPONDENT SEEKING AMENDMENT OF THE PLAINT. EXT.P4: COPY OF THE OBJECTION FILED BY THE PETITIONER TO EXT.P3. EXT.P5: COPY OF THE AFFIDAVIT AND THE ACCOMPANYING PETITION NUMBERED AS I.A.10246/2003 IN O.S.1229/99, FILED BY THE PETITIONER SEEKING TO SET ASIDE THE EXPARTE DECREE UNDER ORDER IX RULE 13 CPC. EXT.P6: COPY OF THE OBJECTION DTD. 29/01/204 FILED BY THE 1ST RESPONDENT TO EXT.P5. EXT.P7: COPY OF I.A.NO.2305/2005 FILED BY THE PETITIONER IN O.S.1229/9. EXT.P8: COPY OF THE I.A.2306/2005 FILED BY THE PETITIONER IN O.S.1229/99. EXT.P9: COPY OF THE OBJECTION TO EXT.P7 APPLICATION FILED BY THE RESPONDENT. EXT.P10: COPY OF THE ORDER DTD. 7/08/2006 OF THE COURT BELOW. /TRUE COPY/ P.A.TO JUDGE Kss M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 5180 OF 2007 --------------------- 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 WPC NO 5180/07 2 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 WPC NO 5180/07 3