IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 12TH NOVEMBER 2010 / 21ST KARTHIKA 1932 OP(C).No. 694 of 2010(O) ------------------------ CMA.24/2009 of DISTRICT COURT,THODUPUZHA OS.211/2005 of MUNSIFF.COURT,THODUPUZHA .................... PETITIONER: -------------------- JOM C.MICHAEL, S/O.MICHAEL, CHAMAKALAYIL HOUSE, MUTTOM VILLAGE, PIN CODE 685 587, THODUPUZHA TALUK, IDUKKI DISTRICT. BY ADV. SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN SRI.P.T.GIRIJAN SMT.USHA NARAYANAN RESPONDENT: --------------- V.P.KONTHALAM, W/O.VALIYA THAMPI, MULLASSERIL HOUSE, THODUPUZHA KARA, THODUPUZHA VILLAGE AND TALUK, PIN CODE.685 585, IDUKKI DISTRICT. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.694 of 2010 --------------------------------------- Dated this 12th day of November, 2010 JUDGMENT Defendant in O.S.No.211 of 2005 suffered an ex parte decree, attempted to set aside that ex parte decree and resurrect the case after 1048 days of the judgment and decree failed successively. Thus, he is before me seeking the indulgence of this court in the matter. 2. Respondent sued petitioner for a declaration of his right for lateral support for plaint A schedule property belonging to him from plaint B schedule belonging to the petitioner. It is not disputed that in the plaint A schedule respondent has constructed a shop building. Petitioner started excavation of earth from plaint B schedule adjoining plaint A schedule and at a time when the excavation reached up to a distance of 13 inches from the outer wall of shop room in plaint A schedule respondent was constrained to file a suit seeking relief as aforesaid. Advocate Commissioner inspected the property and submitted a report. The Court passed an ex parte judgment and decree on 31-01-2006. On 14-01-2009 petitioner filed I.A.Nos.56 and 57 of 2009 to set aside the ex parte judgment and decree and to condone the delay stating that he O.P(C).No.694 of 2010 : 2 : learned about the ex parte judgment and decree only on 19-12-2008 from O.S.No.343 of 2008 filed by a nephew of the respondent seeking similar relief. He stated that he was out of station in connection with business and hence could not learn about the judgment and decree against him. Respondent opposed the applications. Learned Munsiff rejected the explanation offered by petitioner and dismissed the applications vide Ext.P6, common order. That has been confirmed by the learned District Judge vide Ext.P7, judgment in C.M.A.No.24 of 2009. The said common order and judgment are under challenge. Learned counsel contends that it is not merely the length of the delay that is relevant for decision but the ends of justice must be born in mind while considering the applications to set aside the ex parte judgment and decree and to condone the delay. Reliance is placed on the decision in Thomas P Abraham Vs Aleyamma Abraham (2003(3) KLT 864) and Khetrabasi Srechandan Vs. Gopinath Srechandan (AIR 2009 NOC (Orissa) 926). 3. No doubt, it is not the length of the delay that determines the matter. Courts must bear in mind that a litigant must be given the opportunity to contest the case so far as he is not guilty of contumacious negligence or gross latches. Though, it is not necessary for the court to go into the merit of the case at depth O.P(C).No.694 of 2010 : 3 : at this stage, it is not as if it is beyond the power of the court look into the defence that petitioner proposes to make in the case. That is because an ex parte decree cannot be set aside for the mere asking. Here, report of the Advocate Commissioner states that lateral support was removed from plaint B schedule up to 13 inches from the outer wall of the shop room in plaint A schedule. Commissioner reported that if further excavation is made advancing to the plaint A schedule it might result in collapse of the building in plaint A schedule. True, learned Sub Judge has found in favour of lateral support up to a distance of 2 feet. Now the question is whether it is required in the ends of justice to set aside the ex parte judgment and decree after condoning the delay of 1048 days. 4. It has been held in Balakrishnan Vs. Mohammed Basheer (1999 (3) KLT S.N.No.69) that law of limitation is not an equitable statute and that a liberal construction which would jettison the law of limitation cannot be made. The Supreme Court in Oriental Aroma Chemical Industries Limited Vs. Gujarat Industrial Development Corporation and Anr. (2010(5) SCC 459) says that when the delay is inordinate, a stricter approach is needed. The decree was passed in this case on 31-01-2006. Appellate court has observed in Ext.P7, judgment (according to O.P(C).No.694 of 2010 : 4 : learned counsel, from the counter affidavit of respondent) that petitioner is residing just ½km away from the court premises. Assuming that it is not ½km, it is not disputed that petitioner is a resident of Thodupuzha town and distance from that place to the premise of court is not that much far away so that, petitioner was not able to make enquiry about the case for about three years. He stated that he learned about the judgment and decree only on 19-12-2008, ie. almost three years after the ex parte judgment and decree were pronounced on 31-01-2006. Having regard to the facts and circumstances of the case and taking into account fact that even according to the petitioner he is a business man I am not persuaded to think that he was unaware of the case. Assuming that he learned about the judgment and decree only on 19-12-2008, still the applications are filed only on 14-01-2009 again one month after learning about the judgment and decree. Learned counsel points out that in the meantime courts were closed for Christmas vacation. Even then in between 19-12-2008 and 14-01-2009 even excluding the period during which courts were closed for Christmas vacation, petitioner could file the applications either before closing or immediately after respondent-opening of the courts. O.P(C).No.694 of 2010 : 5 : 5. The decisions relied by learned counsel for petitioner have no application to the facts of the case. Thomas P Abraham Vs Aleyamma Abraham (supra) was a suit for specific performance where the ex parte decree for specific performance was granted and this court considered the question whether even in the absence of defendant the court should have granted discretionary relief of specific performance. Learned counsel submits that the decree itself is not correct having regard to the factual situation. That of course is a matter which petitioner should challenge in an appeal if presented as provided under law against the judgment and decree. I am not persuaded to think on the facts and circumstances of the case that courts below have committed any illegality, irregularity or perversity in dismissing the applications and the appeal arising from the common order or that, this court is required to interfere with Article 227 of the Constitution. This petition fails. It is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-