IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931 WP(C).No. 17265 of 2009(O) -------------------------- OS.34/2006 of SUB COURT, HOSDURG. .................... PETITIONER(S): ------------------------ K.GOPALAN NAIR, AGED 71 YEARS, S/O.LATE UCHIRAMA, RESIDING AT KARAKKAKUNDU, PULLUR VILLAGE, HOSDURG TALUK, KASARGOD (DIST). BY ADV. MR.SURESH KUMAR KODOTH RESPONDENT(S): ---------------------------- 1. K.RAMAKRISHNAN, AGED 58 YEARS, S/O.UCHIRA AMMA, RESIDING AT 151-KHB COLONY, V-BLOCK, KORAMANGALA, BANGALORE. 2. K.GANGHADHARAN NAIR, AGED 69 YEARS, R/AT AHWATHY, BALLA VILLAGE, HOSDURG TALUK, KASARGOD DISTRICT. 3. K.MADHAVI, AGED 67 YEARS, KOTTAKOCHI, PULLUR VILLAGE, HARIPURAM P.O., HOSDURG TALUK, KASARGOD DISTRICT. 4. K.LAKSHMI AMMA, AGED 65 YEARS, W/O.KUNHIKORAN NAIR, VALLIKADAVU, MALOTH, HOSDURG TALUK, KASARGOD DISTRICT. 5. K.NARAYANAN, AGED 60 YEARS, SREYAS, NEAR KODUVALLY GHS, TELICHERRY P.O., KANNUR DISTRICT. 6. K.SHARADHA, AGED 56 YEARS, TEACHER (RTD), KOTTAKOCHI, PULLUR, HARIPURAM POST, HOSDURG TALUK, KASARGOD DISTRICT. Kss ..2/- ..2... WPC.NO.17265/2009 O 7. KARUNAKARAN, AGED 54 YEARS, CHERUKAVIL HOUSE, PARAMBIL BAZAR, KOZHIKODE. 8. KUNHIKORAN NAIR, AGED 58 YEARS, VALLIKKADAVU, ALOTH HOUSE, HOSDURG TALUK, KASARGOD DISTRICT. 9. PRABHAVATHI, AGED 50 YEARS, D/O.LATE KARUNAKARAN NAIR, MANAGER, KSFE, CHERUKAVIL, PARAMBIL BAZAR, KOZHIKODE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/06/2009, THE COURT ON 24/06/2009 DELIVERED THE FOLLOWING: Kss S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.17265 OF 2009 (O) ----------------------------------- Dated this the 24th day of June, 2009 J U D G M E N T The writ petition is filed under Article 227 of the Constitution of India seeking the following reliefs: i. to set aside Ext.P5 order dated 11.6.2009 in I.A.No.599/2009 declaring it be illegal and without jurisdiction. ii. to issue any other writ or order or direction as this Honourable Court may deem fit and proper in the facts and circumstances of the case. 2. Petitioner is the 1st defendant in O.S.No.34/2006 on the file of the Sub Court, Hosdurg. Since he did not appear on the hearing date of the case, after service of summons, he was declared ex parte and the trial of the case proceeded against the other defendants. Later, when the suit came up for trial, the petitioner moved an application for setting aside the order WPC.17265/09 2 declaring him ex parte seeking an opportunity to contest the case with a petition to condone the delay in moving that application. Application was objected to by the plaintiff contending that the cause shown for his non-participation in the proceedings on account of his illness is bereft of any bona fides, and that he is a political leader very much engaged in such activities. The learned Sub Judge, after hearing the counsel on both sides and examining the merit of the petitions, found that the petitions have been filed without bona fides to scuttle the trial and prolong the litigation. In that view of the matter, the learned Munsiff dismissed the petitions, but, permitting him to join the proceedings from that stage of the trial. Ext.P5 is the copy of that order. Propriety and correctness of that order is challenged in the petition invoking the supervisory jurisdiction of this Court vested under Article 227 of the Constitution of India. 3. I heard the counsel for the petitioner. From the submissions made and the facts and circumstances presented with reference to the materials produced in the writ petition, I WPC.17265/09 3 find no impropriety or illegality in Ext.P5 order passed by the learned Sub Judge, noting that the intention of the petitioner is only to protract the trial. The learned Sub Judge has noticed after examining the medical certificate produced by the petitioner, even if it was accepted, he was incapacitated by his illness only on one day. The order would also reveal that the suit was once decreed ex parte and it was restored allowing the application moved by the some of the defendants for setting aside the ex parte decree. Before the above said ex parte decree was passed, the petitioner/1st defendant had entered appearance and his counsel had later reported 'no instructions'. After setting aside the ex parte decree against all the defendants, it was again listed for trial. On the hearing date, the 1st defendant remained absent and he was again set ex parte. Pursuant thereto, after the examination of the plaintiff and his witnesses were over and when the case was posted for the evidence of the contesting defendants, it is stated the 1st defendant appeared and moved the present petition seeking permission to contest the case after condoning the delay in filing such petition. What transpired WPC.17265/09 4 in the proceedings of the case as indicated above is sufficient enough to hold that the conclusion found by the learned Sub Judge that the petition moved by the petitioner lacked bona fides cannot be found fault with. Writ petition is devoid of any merit, and it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO. OF 2006 () --------------------------------------------------------- O R D E R --------------------------------------------------------- 23rd March, 2009