IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 10TH DECEMBER 2008 / 19TH AGRAHAYANA 1930 WP(C).No.35955 of 2008(E) --------------------------------- C.M.A.7/08 OF SUB COURT, THALASSERY. I.A.2164/07 IN O.S. NO.319/05 OF MUNSIFF COURT, THALASSERY .................... PETITIONER: --------------- DEVARIKANDY PREMARAJAN, S/O.KORAN, RESIDING AT EP XI/295, P.O.KADALAYI, KANNUR. BY ADV. SMT.M.M.DEEPA SRI.GOPAKUMAR G. (ALUVA) RESPONDENT: --------------- DEVARIKANDY SAROJINI, W/O.RAGHUTHAMAN, KUNNUMPURATH HOUSE, NEAR S.N.COLLEGE, THOTTADA, KANNUR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C No.35955 of 2008 ------------------------------------------------ Dated this the 10th day of December, 2008 JUDGMENT Petitioner is the defendant in O.S.319/05 on the file of the Munsiff's Court, Thalassery. Respondent who is the plaintiff in the suit is his own sister. Suit was filed seeking for a decree of mandatory injunction to evict the petitioner from the scheduled house which was allotted in partition to the respondent to which the petitioner was also a party. According to the respondent, she permitted the petitioner to occupy the scheduled house as a licensee with liability to pay licence fee. The petitioner resisted the suit filing written statement contending that he was being allowed to occupy the house till due share of the value fixed for the house is paid and refuting the claim for licensee fee and damages. Obviously, there was W. P. C. No.35955 of 2008 -2- no provision made in the partition deed enabling the petitioner to occupy the scheduled building. Consequently, it was only a frivolous contention set up by the petitioner/defendant to resist the suit. The petitioner did not appear before court when the suit stood posted for trial in the list and consequently, the trial court decreed the suit directing the petitioner to vacate the scheduled building by a decree of mandatory injunction; restraining him from committing waste in the scheduled building and to pay the respondent/plaintiff a sum of Rs.12,000/- being arrears of licence fee from July 2003 to July 2005 with interest at the rate of 6% per annum; to pay damages for use and occupation from 29/07/05 till date of suit at the rate of Rs.4,200/- per month and at the rate of Rs.3,000/- per month as damages for use and occupation from the date of suit. The W. P. C. No.35955 of 2008 -3- petitioner filed I.A.2164/07 in the court below under Order IX Rule 13 CPC to set aside the ex parte decree so passed on 06/10/07 alleging that he was bedridden and due to back pain he could not contact his counsel and it was therefore, that the counsel reported no instructions when the case came up for trial in the list. No document at all was produced to substantiate his contention that he was bedridden due to back pain nor has the petitioner chosen to enter into the witness box to tender oral evidence in support of his application to set aside the ex parte decree. Consequently, disbelieving the case of the petitioner, the trial court vide Ext.P2 order dismissed the petition filed by him to set aside the ex parte decree. The petitioner filed C.M.A.7/08 assailing the said order and the appellate court dismissed the said appeal concurring with the finding of the court W. P. C. No.35955 of 2008 -4- below. It is against the said concurrent orders of the courts below that the petitioner has come up with this Writ Petition. 2. The suit was decreed ex parte on 06/10/07 consequent on the counsel for the petitioner reporting “no instructions” and setting the petitioner ex parte. Though the decree was passed on 06/10/07 the petitioner waited up to the last day to file a petition to set aside the ex parte decree and it was filed on 04/11/07. Obviously, the purpose was to protract the litigation as far as possible so that he can continue in occupation of the scheduled building belonging to the respondent and alloted to her, without paying any rent to the respondent. Even when the matter came up before me for admission hearing, though the counsel was asked about the willingness of the petitioner either to vacate or to deposit the amount decreed and for the purpose the case W. P. C. No.35955 of 2008 -5- was adjourned to this day vide speaking order passed on 05/12/08, to enable the counsel to get further instructions from the petitioner as desired by counsel for the petitioner, he is unable to submit as to what is the stand taken by the petitioner. There is absolutely no reason for this Court to interfere with the concurrent orders passed by the courts below dismissing the petition under Order IX Rule 13 C.P.C filed by the petitioner. 3. In the result, I dismiss this Writ Petition. K.P.BALACHANDRAN, JUDGE kns/- W. P. C. No.35955 of 2008 -6- K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.35955 of 2008 ------------------------------------------------ Dated this the 5th day of December, 2008 ORDER Having advanced arguments in this Writ Petition and probably on being convinced that this Court is not inclined either to admit this Writ Petition and much less to quash Ext.P4 order of the first appellate court confirming Ext.P2 order of the trial court especially as the petitioner is residing in the building alloted to the share of his sister/the respondent even without paying any amount by way rent or licence, counsel for the petitioner submits that the case be posted to 10th December, 2008 to get further instructions from the petitioner. Hence, post on 10/12/08. K.P.BALACHANDRAN, JUDGE W. P. C. No.35955 of 2008 -7- kns/-