IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 19TH FEBRUARY 2008 / 30TH MAGHA 1929 WP(C).No. 30913 of 2007(E) -------------------------------------- CMA.42/2007 OF II ADDL. DISTRICT COURT, KOLLAM, OS.651/2000 OF PRL.MUNSIFF COURT, KOLLAM. .................... PETITIONER/APPELLANT/PLAINTIFF: ----------------------------------------------------- VIJAYAMMA, AGED 54, D/O.RUGMINI, UDAYA BHAVANAM, SAKTHIKULANGARA VILLAGE, MADAMMATHOPPE, KOLLAM. BY ADV. SRI.K.S.MANU (PUNUKKONNOOR), ADV. SRI.P.SREEKUMAR. RESPONDENTS/RESPONDENTS/DEFENDANTS: -------------------------------------------------------------------- 1. CHRISTAPHER, KARISHUMA, MADAMMATHOPPE, SAKTHIKULANGARA VILLAGE, KOLLAM. 2. BENCHMAN, OF -DO- -DO- BY ADV. SRI.V.V.RAJA, ADV. SRI.R.RENJITH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/02/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.30913/2007-E: APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE I.A. NO. 933/07 AND 934/07 FILED BY THE PETITIONER BEFORE THE MUNSIFF'S COURT, KOLLAM. EXT.P.2; COPY OF THE ORDER IN I.A. NO. 933/07 & 934/07 OF THE MUNSIFF'S COURT, KOLLAM. EXT.P.3: COPY OF THE JUDGMENT IN C.M.A. NO. 42/07 DT. 06/10/07 OF THE ADDL. DISTRICT AND SESSIONS JUDGE, KOLLAM. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// prv. M.N. KRISHNAN, J. = = = = = = = = = = = = = = W.P.C. NO. 30913 OF 2007 = = = = = = = = = = = = = = = Dated this the 19th day of February, 2008. J U D G M E N T This writ petition is preferred against the order of the II Addl. District Judge, Kollam in CMA 42/07 which in turn is preferred against the order in I.A.933/07 in O.S.651/00. The suit is one for an injunction against forceful eviction by a decree of injunction. The plaintiff is claiming kudikidappu right over the property. Defendants denied any such right and contended that the plaintiffs are only tenants of the property and therefore filed a counter claim for eviction of the property. The suit happened to be dismissed for default and the counter claim was decreed and it is to restore the suit dismissed for default and set aside the exparte order of counter claim application was filed with a petition to condone the delay of 330 days. The delay condonation application was on the ground that the plaintiff was unaware of the dismissal of the case and therefore she could not file an application in W.P.C 30913 OF 2007 -:2:- time. The Courts below on facts found that the said ground was not satisfactorily explained away and therefore refused to allow the prayer in the petition. Now, it is that concurrent finding that is under challenge in this petition. 2. At the out set I may like to hold that in a case of this nature the Court has to bear in mind the wholesome principles of natural justice as decided by this Court in Sreedhara Kurup v. Mickel (1968 KLT 599). “The brooding spirit of natural justice must be the background while ascertaining whether there is sufficient cause. A strict and narrow construction defeats the ends of justice which can be reached only after a fair fight between the disputants.” The Court also held that, “It is largely a matter of wise discretion to be exercised by the Court bearing in mind the wholesome principle that the right of a party to be heard should be negatived only if there is gross negligence or gross carelessness and that if some steps have W.P.C 30913 OF 2007 -:3:- been taken and application for restoration has been made with some diligence ad some eviction adduced making out a sufficient cause for absence, restoration should be ordered, minor misconduct or laches being corrected by the common curative of costs.” 3. It is with these broad principles in mind I would like to analyse the case. At the stage of setting aside an exparte decree or restoring the suit dismissed for default the Court is not really expected to go into the merits or demerits of the contentions of the parties and the Court must prima facie look into the grounds averred for the restoration. PW1 had deposed before the Court that she had been frequenting her lawyer and she was never informed about the dismissal of the case. In the petition it is true that she has averred that there was laches on the part of the advocate that has resulted in the dismissal of the suit. These are all grey area where much can be said. In such circumstances it is desirable to apply the broad principles of natural justice. I feel that an opportunity shall be given to the writ petitioner W.P.C 30913 OF 2007 -:4:- to contest the case on merits. But for the laches she must be directed to pay costs to the other side. Therefore the order under challenge is set aside and the petition for condoning the delay is allowed and the suit is restored to file and the exparte decree of counter claim is set aside on payment of costs of Rs.2,000/- to the counsel appearing for the respondents in this Court within a period of one month from today. If the amount is not paid within the stipulated period the writ petition shall stand automatically dismissed. On the contra, if the amount is paid the Court below is directed to restore the case to file as well as the counter claim and being a suit of earlier years try to dispose it of as expeditiously as possible and if possible before the Court closes for summer holidays. The writ petition is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-