IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 29TH SEPTEMBER 2009 / 7TH ASWINA 1931 WP(C).No. 33697 of 2008(J) -------------------------- AGAINST THE ORDER DATED 30/06/2008 IN & CMA.8/2007 IN CMA.7/2007 of SUB COURT, THIRUVALLA .................... PETITIONER(S): --------------- PONNACHAN ABRAHAM, POONITHOTTUCHIRAYIL, PADIYAKARA MURI, THIRUVALLA VILLAGE. BY ADV. SRI.P.HARIDAS RESPONDENT(S): --------------- 1. K.C.CHACKO, KILIYILETH VEEDU, PALIYAKARA MURI, THIRUVALLA VILLAGE. 2. THANKAMMA CHACKO, W/O.K.C.CHACKO, KILIYILETH VEEDU, PALIYAKARA MURI, THIRUVALLA VILLAGE. ADV. SRI.P.PARAMESWARAN NAIR FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: w.p.(c) NO. 33697/2008 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF THE PLAINT IN O.S NO.826/1998 FILED BEFORE THE MUNSIFF COURT, THIRUVALLA BY RESPONDENTS HEREIN DATED 30/11/1998. EXT.P2 : TRUE COPY OF THE WRITTEN STATEMENT ALONG WITH A COUNTER AFFIDAVIT IN O.S NO.826/1998 FILED BY THE PETITIONER BEFORE THE MUNSIFF COURT, THIRUVALLA, DATED 05/08/2004. EXT.P3 : TRUE COPYOF THE COMMISSION REPORT ROUGH SKETCH DATED 13/01/2000. EXT.P4 : TRUE COPY OF THE DISABILITY CERTIFICATE ISSUED BY THE DISTRICT MEDICAL BOARD DATED 14/11/2003. EXT.P5 : TRUE COPY OF THE ORDER OF THE COMMON JUDGMENT IN CMA NO.7/07 AND 8/07 ISSUED BY THE SUB COURT, THIRUVALLA, DATED 30/06/2008. RESPONDENT'S EXHIBITS : NIL //TRUE COPY// P.A TO JUDGE vdv S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.33697 OF 2008 -------------------------- Dated this the 29th day of September 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) May call for records leading to Ext.P5 judgment and may set aside the same. ii) Such appropriate reliefs this Hon'ble Court seems fit and necessary in the circumstances. 2. Petitioner is the second defendant in O.S No.826 of 1998 on the file of Munsiff Court, Thiruvalla. Suit was one for perpetual prohibitory injunction, and the respondents are the plaintiffs. Suit was decreed exparte as against the nine defendants. Long after the exparte decree, petitioner moved an application with a petition to W.P.(C).No.33697 OF 2008 Page numbers condone delay of 432 days for setting aside that decree. That application was opposed to by the plaintiff filing objections. The trial court allowed the application on terms directing the petitioner to pay a sum of Rs.1,000/- as cost for setting aside the exparte decree and for fresh trial. In the appeal preferred by the plaintiff, the learned Sub Judge, Thiruvalla reversed the order of the learned Munsiff and dismissed the application moved by the petitioner for setting aside the exparte decree. Impeaching the correctness of Ext.P5 judgment rendered by the learned Sub Judge, the writ petition has been filed invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the learned counsel on both sides. Though the judgment rendered by the learned Sub Judge is sought to be sustained strenuously by W.P.(C).No.33697 OF 2008 Page numbers the learned counsel for the plaintiff contending that no sufficient cause had been made out for the inordinate delay in moving the application for setting aside the exparte decree by the petitioner/second defendant and that the cause shown for his absence was meritless, after going through Ext.P5 judgment, I find the reasons which permitted the trial judge in allowing the application have not been shown to be perverse or unsustainable by the learned Sub Judge while reversing that order. The trial judge after examining the merit of the petition has exercised his discretion in forming a conclusion that the application for setting aside the exparte decree deserves to be allowed, but subject to terms. Unless the judicial discretion exercised by that court is shown to be perverse and not in consonance with the principles of law and natural justice, it is not open to the appellate court to reverse the order passed on the basis of judicial discretion. W.P.(C).No.33697 OF 2008 Page numbers So much so, I find Ext.P5 judgment in which other reasons are adverted to hold that the petitioner has not made out sufficient cause cannot be approved. However the long delay in moving the application and also the lapse of time after passing of the decree cannot go unnoticed, and so much so, I find, the petition for setting aside the exparte decree moved by the petitioner/second defendant can be granted only on compensating the loss and injury likely to be suffered by the respondents. Petitioner/second defendant shall pay a sum of Rs.5,000/- (Rupees five thousand only) to the respondent within one month from the date of this judgment as a condition precedent for allowing the application for setting aside the exparte decree. Cost ordered shall be paid to the counsel appearing for the respondent before this court and a memo filed before 30th October 2009. I make it clear that the order of injunction granted under the exparte decree shall continue to be in force W.P.(C).No.33697 OF 2008 Page numbers till the disposal afresh on merits, subject to payment of cost and setting aside of the exparte decree. Further it is also made clear that setting aside of the exparte decree on the application of the second defendant will not enure to the benefit of the other defendants and the exparte decree passed against them will continue to be in force, subject to decision on merits in the suit. Writ petition is disposed. Post for report on 02/11/2009. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv