IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 27TH AUGUST 2008 / 5TH BHADRA 1930 WP(C).No. 23605 of 2008(I) -------------------------- AGAINST THE ORDER DATED 09/06/2008 IN IA 484/08 IN OS.167/2003 of PRINCIPAL SUB COURT,KOCHI .................... PETITIONER: RESPONDENT/PLAINTIFF --------------- YESODHARAN, AGED 53 YEARS, S/O.VELKKUTTY, POUNAMI HOUSE, MARADU VILLAGE, CHAMPAKKARA. BY ADV. SRI.N.K.MOHANLAL RESPONDENTS: PETITIONER/ 2ND DEFENDANT ----------------- M/S.NEROTH JOHN CHANDY AND COMPANY, ANTIQUE HOUSE, VI/125, JEW TOWN, KOCHI 2, REPRESENTED BY ITS MANAGING PARTNER, ROCKEY C NEROTH, AGED 48 YEARS, S/O.N J CHANDY,XXVII/2283, NEROTH HOUSE, KP VALLON ROAD, ERNAKULAM. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.23605 of 2008 ------------------------------- Dated this the 27th August, 2008. J U D G M E N T Petitioner is the plaintiff and respondent the second defendant in O.S.No.167 of 2003, on the file of Sub court,Kochi. The suit is one for specific performance of an agreement for sale. The suit was decreed ex parte. Second defendant thereafter filed I.A.No.484 of 2008, an application under Rule 13 of Order IX of Code of Civil Procedure to set aside the ex parte decree. I.A.No.486 of 2008 is an application filed to condone the delay. There was a delay of 706 days in filing the application to set aside the ex parte. The case of the second defendant was that he was not aware of the posting of the suit and the ex parte decree, as the counsel did not intimate the fact to him. It was contended that counsel appearing for the petitioner omitted to take note of the posting date after 5.4.2005, and as the clerk failed to take note of the subsequent dates, he did not find out the posting date and ultimately when the petitioner came to know about the W.P.(C) No.23605 of 2008 2 decree, the petition was filed and it was contended that the delay was not willful, but only due to the failure of the counsel and in such circumstances, the delay is to be condoned. 2. Petitioner opposed the application contending that pursuant to the decree, the document was got registered through court and petitioner deposited the balance sale consideration and also incurred expenses for registration of the document, and in such circumstances, petition cannot be allowed and the delay cannot be condoned. 3. The reasons stated for setting aside the ex parte decree is also identical. Learned Sub Judge, as per order dated 31.5.2008, allowed the application for condonation of delay on payment of cost of Rs.3000/=. Consequently, I.A.No.484 of 2008 was allowed. Later on 9.6.2008 finding that second defendant shall not suffer due to the negligence or latches on the part of his counsel, the ex parte decree was set aside. This petition is filed under Article 227 of the Constitution of India challenging the above orders. W.P.(C) No.23605 of 2008 3 4. Learned counsel appearing for the petitioner was heard. 5. Learned counsel vehemently argued that learned Sub Judge was not justified in allowing the application for condonation of delay or the application to set aside the ex parte decree, without considering the objection raised by the petitioner. It was argued that second defendant did not establish sufficient cause to condone the delay or to set aside the ex parte decree. Learned counsel also argued that direction to pay cost of Rs.3000/= is nothing compared to the expenses incurred by the petitioner, and in such circumstances, the orders are to be quashed. 6. By the respective orders in I.A.Nos.484 and 486 of 2008, learned Sub Judge has granted an opportunity to the second defendant to get a decision on merits. I do not find any reason to interfere with the discretion exercised by the learned Sub Judge, when by the said orders, learned Sub Judge has only granted an opportunity to have a decision on merits. Though W.P.(C) No.23605 of 2008 4 petitioner incurred expenses consequent to the ex parte decree, by filing an execution petition and getting the same executed, learned Sub Judge has compensated the same by cost. The question whether plaintiff is entitled to a decree for specific performance is to be decided in O.S.No.167 of 2003. In such circumstances, as I find no irregularity or illegality in the impugned orders warranting interference, writ petition is dismissed. Learned Sub Judge is directed to dispose the suit expeditiously. M.SASIDHARAN NAMBIAR, JUDGE nj.