IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 11TH MARCH 2011 / 20TH PHALGUNA 1932 WP(C).No. 9345 of 2010(O) ------------------------- CMA.5/2009 of ADDL.DISTRICT COURT,KOTTAYAM OS.401/2006 of MUNSIFF COURT, VAIKOM .................... PETITIONER(S): --------------- DAYAROY, AGED 53 YEARS, S/O.PARAMESHWARAN, PUTHENVEETTILAYA, KAITHAKKAPADAVIL HOUSE, AKKARAPADATH VADAKKEMURI KARA, VADAKKEMURI VILLAGE, VAIKOM TALUK. BY ADV. SRI.P.M.NATESAN RESPONDENT(S): --------------- M.R.REJI, AGED 38 YEARS, S/O.RAVEENDRAN, CHULLITHARA HOUSE, KIZHAKKUMCHERI, VADAKKEMURI, NADUVILE VILLAGE, VAIKOM.P.O. ADV. SRI.SIVARAM R MENON FOR R & ADV. SRI. P.S. RENJITH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX EXT. P1 TRUE COPY OF I.A.NO.1746/08 DATED 6.10.08 FILED BY THE PETITIONER FOR SETTING ASIDE EX-PARTE DECREE IN O.S.401/06 OF MUNSIFF'S COURT, VAIKOM. EXT.P2 TRUE COPY OF THE DISMISSAL ORDER OF EXT.P1 DATED 29.11.08 BY THE MUNSIFF'S COURT , VAIKOM. EXT.P3 TRUE COPY OF DISMISSAL ORDER IN CMA 5 OF 2009 DATED 7.9.09 OF THE ADDITIONAL DISTRICT COURT, KOTTAYAM. [ True copy ] P.A. to Judge. N.K. BALAKRISHNAN, J. = = = = = = = = = = = = = = = = W.P.C. NO. 9345 OF 2010 = = = = = = = = = = = = = = = = Dated this the 11th day of March, 2011. J U D G M E N T The defendant in a suit for money is the revision petitioner. The suit was for realisation of a sum of Rs.1,00,000/- and interest thereon. The suit was listed for trial on 5.9.2008. The defendant did not turn up. The plaintiff was examined. It was posted to 6.9.2008 and on that day judgment was pronounced. An application was filed to set aside the exparte decree on 6.10.2008 stating that from 1.9.08 onwards petitioner was suffering from spondilytis. No document was produced to substantiate that contention. It was noticed by the trial court that, when the suit was listed for trial in 2006 also the W.P.C. 9345 OF 2010 -:2:- defendant remained exparte. That exparte decree was set aside by filing an application subsequently. The respondent contends that this is only another attempt made by the petitioner to protract the proceedings. The learned counsel for the petitioner submits that FD receipts for Rs.1,05,000/- has been produced before the trial court and it lies there. Therefore, according to the learned counsel for the petitioner if one more opportunity is given to him no prejudice will be caused to the plaintiff. Though it would appear that the conduct of the petitioner is contumacious in getting the suit adjourned on one ground or the other, I think one more opportunity can be given to the petitioner but on condition that a sum of Rs.5,000/- shall be paid to the plaintiff/respondent either directly W.P.C. 9345 OF 2010 -:3:- or to his counsel, which shall be paid on or before 22.3.2011. The memo/receipt regarding the payment shall be produced before the Munsiff court, Vaikom. If the amount as aforesaid is paid, this petition will stand allowed, in which case the parties will appear before the Munsiff Court, Vaikom on 24.5.2011. In that event the court below will dispose of the suit within one month thereafter. It is further made clear that no more adjournment shall be granted to the defendant thereafter unless the learned Munsiff feels it so unavoidable. If the cost as aforesaid is not paid on time this petition will stand dismissed. N.K. BALAKRISHNAN,JUDGE. ul/-