IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 17TH MARCH 2010 / 26TH PHALGUNA 1931 WP(C).No. 8959 of 2010(O) ---------------------------------- IA. NO.1400/2009 IN OS.359/2006 of I ADDL.SUB COURT, KOZHIKODE .................... PETITIONER(S): ------------------------ E.P.SHANMUGHAN, AGED 57 YEARS, S/O.KONUTTY, EDATHUMPADIKKAL HOUSE, KALLAI KASABA AMSOM DESOM, KOZHIKODE TALUK. BY ADVS.MR.R.SUDHISH SMT.M.MANJU RESPONDENT(S): ------------------------- 1. I.K.K.MENON, AGED 93 YEARS, POONTHANAM, KASABA AMSOM, KARIKUNNU DESOM, KOZHIKODE TALUK NOW AT 162 RPS FLATS, SHEIK SARAI, NEW DELHI-110 017. 2. VISHALAKSHI MENON, AGED 48 YEARS, D/O.I.K.K.MENON, 162 RPS FLATS, SHEIK SARAI, NEW DELHI-110 001. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss P. BHAVADASAN, J --------------------------- W.P.(C).No.8959 OF 2010 ----------------------------------- Dated this the 17th day of March, 2010 J U D G M E N T In this writ petition the petitioner seeks to assail the order of the court below whereby ex parte decree passed against the petitioner herein was set aside. The suit was restored to file for disposal on merits. 2. The petitioner instituted O.S.359/09 before the Sub Court, Kozhikode. Suit was for specific performance. The defendants set exparte. The exparte decree was passed on 4.2.2008. Later the defendants in the suit moved I.a.1399/09 and I.A.1400/09 for condoning the delay in filing application to set aside the the exparte decree and to set aside exparte decree. They have also filed an application for issuance of a commission to examine the petitioners o the basis of averments in the petition. 3. It is pointed out by the counsel that the first defendant was ill and was bed ridden. He had undergone treatment at New Delhi and 2nd respondent was looking after by him. Under these circumstances, they could not contest the suit and that there is W.P.(c) No.8959/10 2 no willful laches or negligence on their part. They have produced a few documents in support of their claim. 4. The petition was opposed by the respondent who pointed out that no acceptable reason was given by the petitioner to set aside the exparte decree and it is only intended to drag on the suit. 5. The court below on an evaluation of the materials on record, allowed the petition and awarded a sum of Rs.6,000/-. The said order is assailed. 6. The learned counsel appearing for the petitioner pointed out that there is absolutely no justification in having allowed the petition. No acceptable reason is given by the petitioners in the court below as to why the exparte decree should be set aside. It is not a a matter of course and there should be compelling circumstances to cause the absence and which beyond the control of the defendants. There is no such materials in the present case and the learned counsel pointed out that the petition is ought not have been allowed. 7. The lower court has on an evaluation of the materials before it has exercised its discretion in allowing the petition. Injury or loss caused has been compensated by awarding cost of W.P.(c) No.8959/10 3 Rs.6,000/-. 8. No justifiable grounds are made out to interfere with the discretionary power exercised by the court below and more over, court below has found that any injury or loss caused can be compensated by awarding cost. Under such circumstances, there is no reason to interfere with the order. However, being a suit of the year 2006, the court below shall take every endevour to dispose of the suit as expeditiously as possible. P. BHAVADASAN, JUDGE. Sou.