IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 19TH MARCH 2010 / 28TH PHALGUNA 1931 WP(C).No. 7764 of 2010(O) ------------------------- OS.98/1996 of ADDL.SUB COURT,KOLLAM .................... PETITIONER: --------------- V.SATHYASEELAN, GENERAL SECRETARY, KERALA KASUVANDI THOZHILALI CONGRESS, RESIDING AT USHUS, EZHUKONE, KOLLAM. BY ADV. SRI.N.DHARMADAN, SENIOR ADVOCATE SMT.D.P.RENU RESPONDENT: ------------------- 1. KERALA KASUVANDI THOZHILALI CONGRESS, CLAIM TO BE REP. BY K.R.V.SAHAJAN, S/O.VIDHYADHARAN, BRANCH SECRETARY OF THE TRADE UNION, RESIDING AT ASRAYAM, CHANDANATHOPPU, KOLLAM. ADV. SRI.P.B.SURESH KUMAR FOR R1 SRI.LEO GEORGE FOR R1 SRI.K.P.SUJESH KUMAR FOR R1 SRI.K.N.SASIDHARAN NAIR FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. -------------------------- W.P.(C).No.7764 OF 2010 & I.A.No.4626 OF 2009 IN R.F.A.NO.828 OF 2009 -------------------------- DATED THIS THE 18th DAY OF MARCH, 2010 JUDGMENT Writ Petitioner is the 3rd defendant in O.S.No.98/96 on the file of the Additional Sub Court, Kollam. This writ petition is filed seeking to issue a writ of mandamus directing the Additional Sub Court, Kollam to dispose of I.A.Nos.3412/09 and 3276/09 in O.S.No.98/96 expediously. The writ petitioner is the appellant in R.F.A.No.828/09, which was filed against the preliminary decree and judgment in O.S.No.98/96. The 3rd defendant was set ex parte in the suit. Subsequently, the court below passed preliminary decree and judgment on 25/9/09. The defendants in the suit including the writ petitioner remained ex parte. The decree was passed declaring that the defendants 2 to 22 are not the office bearers and working committee members of the lst defendant and that the parties are at liberty to apply for appointment of a -2- WP(C).No.7764/2010 I.A.No.4626/09 IN RFA.No.828/09 Commissioner to conduct an election for the office bearers and the working committee of the lst defendant Union. R.FA.No.828/09 was preferred against the ex parte decree and judgment dated 25th September, 2009. 2. The petitioner filed I.A No.3240/09 seeking to adjourn the case for trial stating that his counsel is laid up and undergoing treatment in the hospital. A medical certificate was also produced for the same purpose. The prayer for adjournment was rejected on 23/9/09 and subsequently, the decree and judgment were passed. Before the disposal of the suit on 25/9/09 the petitioner filed I.A.No.3276/09, marked as Ext.P2 to set aside the order passed by the court below declaring the writ petitioner ex parte and proceed with the trial of the suit, after affording an opportunity to the petitioner to adduce evidence. It is seen that no orders are passed on I.A.No.3276/09. After passing the ex parte decree and judgment, again the petitioner filed I.A.No.3412/09 -3- WP(C).No.7764/2010 I.A.No.4626/09 IN RFA.No.828/09 under Order IX Rules 7 and 13 read with Section 151 C.P.C. for setting aside the ex parte decree and judgment. 3. The only prayer in the writ petition is for disposal of the above-said I.As. The learned counsel for the petitioner submitted that those I.As. are not yet disposed of, if not disposed of earlier, there is every chance of the appeal become infructuous. I.A.No.3412/09 is for setting aside the ex parte decree and judgment. The connected I.A.No.3276/09 was filed before the disposal of the suit. So, the direction to dispose of I.ANo.3412/09l will serve the ends of justice. There is no necessity to try I.A.No.3276/09 for setting aside the order passed during the pendency of the suit declaring the petitioner ex parte, since the suit itself was disposed of in the meantime. 4. In the circumstances, the writ petition is allowed. The Additional Sub Court is directed to dispose of I.A.No.3412/09 in O.S.No.98/96 filed for setting aside the ex part decree and -4- WP(C).No.7764/2010 I.A.No.4626/09 IN RFA.No.828/09 judgment on or before 30th June, 2010. The court below shall keep in abeyance all further proceedings pursuant to the preliminary decree passed. The interim order passed in I.ANo.4626/09 in RFA.No.828/09 shall be subjected to the directions issued in the writ petition. HARUN-UL-RASHID, JUDGE. Kcv -5- WP(C).No.7764/2010 I.A.No.4626/09 IN RFA.No.828/09