IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 27TH JULY 2010 / 5TH SRAVANA 1932 WP(C).NO. 20806 OF 2010(O) ----------------------------------------- OS.379/2008 OF ADDL.MUNSIFF COURT,KOCHI .................... PETITIONER(S): ------------------------ SOMALATHA @ P.K.LATHA D/O.KRISHNANKUTTY, AGED 57 YEARS RESIDING AT C.C.14/789 A,KURUPPATHUPARRAMBIL, MOOLAMKUZHI MURI, RAMESWARAM VILLAGE, KOCHI TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.T.MADHU RESPONDENT(S): ------------------------- ANTONY JOSEPH S/O.GEORGE JOSEPH, AGED 38 YEARS ILLIPARAMBIL HOUSE, MATANCHERY, KOCHI-2 ADV. SRI.SUNIL SHANKER FOR R THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 A TRUE COPY OF THE PLAINT IN O.S. NO.379 OF 2008 ON THE FILE OF THE MUNSIFF'S COURT, KOCHI. EXHIBIT P2 A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANT IN O.S. NO.379 OF 2008 ON THE FILE OF HONOURABLE MUNSIFF;S COURT, KOCHI. EXHIBIT P3 A TRUE COPY OF THE PETITION I.A. NO.2032 OF 2009 IN O.S. NO.379 OF 2008 ON THE FILE OF THE MUNSIFF'S COURT, KOCHI. EXHIBIT P4 A TRUE COPY OF THE ORDER DATED 1.12.2009 IN I.A. NO.2032 OF 2009 IN O.S. NO.379 OF 2009 ON THE FILE OF THE MUNSIFF'S COURT, KOCHI. EXHIBIT P5 A TRUE COPY OF THE PETITION DATED 9.12.2009 IN I.A. NO.2354 OF 2009 ON THE FILE OF THE MUNSIFF'S COURT, KOCHI. EXHIBIT P6 A TRUE COPY OF THE ORDER DATED 12.12.2010 IN I.A. NO.2354 OF 2009 IN I.A. NO.2032 OF 2009 IN O.S. NO.379 OF 2008 ON THE FILE OF THE MUNSIFF'S COURT, KOCHI. EXHIBIT P7 A TRUE COPY OF THE NOTICE DATED 27.1.2010 ISSUED BY THE MUNSIFF'S COURT, KOCHI. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) No.20806 of 2010 ==================================== Dated this the 27th day of July, 2010 J U D G M E N T Petitioner is the defendant in O.S. No.370 of 2008 of the court of learned Additional Munsiff, Kochi. That is a suit filed by the respondent for recovery of possession of suit property with damages for unlawful use and occupation. Petitioner resisted the suit by contending that she is in possession of the said property as per a lease agreement between her son and prior owner of the property followed by an agreement for sale of the said property in favour of her son. Evidence of respondent was recorded and case was posted for evidence of petitioner on 24.10.2009. According to the petitioner due to inconvenience of her counsel evidence could not be adduced that day and thereon learned Munsiff closed her evidence and posted the case for hearing. Petitioner filed Ext.P3, application to re-open the case for evidence. That application was allowed by Ext.P4, order dated 1.12.2009 on payment of costs of Rs.750/- within ten days from that date. Petitioner, claiming that she was not able to raise funds filed Ext.P5, application on 9.12.2009. That application came up for hearing on 12.01.2010. In W.P(C) No.20806 of 2010 -: 2 :- the meantime counsel for petitioner (in the court below) expired on 09.01.2010. As per Ext.P6 order, Ext.P5 application was dismissed by the learned Munsiff. That order is under challenge in this Writ Petition. Learned counsel for petitioner contends that on account of lack of funds petitioner was not able to pay the costs ordered within time specified and that in the mean time since her counsel in the court below expired, application for extension of time happened to be dismissed on 12.01.2010. It is also stated by learned counsel that thereafter noting that counsel for petitioner expired learned Munsiff issued notice to the petitioner and she appeared in the court below and engaged the present counsel on 23.03.2010. Thereafter she took steps to file this Writ Petition. Petitioner prays that she may be given opportunity to adduce evidence. Leaned counsel for respondent contended that there was wilful laches on the part of petitioner. 2. Petitioner states that on account of financial difficulty she was not able to raise the funds. There is no reason to think that petitioner purposely did not pay the costs and invited an adverse order. The case is not so far disposed of. It is only just and proper that petitioner is given an opportunity to adduce evidence but on payment of costs as ordered by the court below. W.P(C) No.20806 of 2010 -: 3 :- Resultantly this Writ Petition is allowed in the following lines: (i) Exhibit P6, order will stand set aside and Exts.P3 and P5 applications will stand allowed on condition that petitioner paid costs of Rs.750/- (Rupees Seven hundred and fifty only) to the respondent through counsel and filed receipt to that effect in the court below within fourteen (14) days from this day. (ii) In case cost as aforesaid is not paid Writ Petition will stand dismissed in confirmation of Ext.P6, order. Post on 11.08.2010. THOMAS P. JOSEPH, JUDGE. vsv