IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 12TH OCTOBER 2009 / 20TH ASWINA 1931 WP(C).No. 5366 of 2009(O) ------------------------------------- OS.NO.291/2008 OF SUB COURT, MAVELIKKARA. .................... PETITIONER: ------------------- IDICULA MATHEW,S/O.MATHEW, AGED 57 YEARS RESIDING AT PUTHUVAPADICKAL, PALLARIMANGALAM P.O., THEKKEKARA VILLAGE, MAVELIKARA. BY ADV. MR.A.SHAFEEK (KAYAMKULAM). RESPONDENTS: ------------------------ 1. THE CAPITAL BANKERS, P.N.SAMUEL MEMORIAL SHOPPING COMPLEX, NEAR BUDHA JUNCTION, MAVELIKARA, REPRESENTED BY ITS MANAGING DIRECTOR VARGHESE SAMUEL. 2. VARGHESE SAMUEL, S/O.SAMUEL, PUTHENVEEDU, KOTTARAKAVU MURI, MAVELIKARA VILLAGE, ALAPPUZHA DISTRICT. R2 BY ADV. MR.SAJU JOHN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/10/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.5366/2009-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PLAINT IN O.S. NO.291/2008 OF THE SUB JUDGE, MAVELIKARA. EXT.P.2: COPY OF THE I.A. NO. 277/2009 FILED BY THE PETITIONER IN O.S. NO. 291/2008 OF THE SUB JUDGE, MAVELIKARA. EXT.P.3: COPY OF THE ORDER DTD. 12/02/2009 OF THE SUB JUDGE, MAVELIKARA IN I.A. NO. 277/2009. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.5366 OF 2009 -------------------------- Dated this the 12th day of October 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Issue appropriate writ or order setting aside the order in I.A No.277/2009 ii) Issue appropriate order compelling the learned Sub Judge to send O.S No.291/2008 before the Adalath. iii) Issue appropriate order compelling the learned Sub Judge not to insist the payment of balance court fee before the disposal of I.A No.219/2009. iv) Grant such other reliefs as this Hon'ble Court shall deem just. 2. Petitioner is the plaintiff in O.S No.291 of 2008 on the file of Sub Court, Mavelikkara. Suit was one for money, and the W.P.(C).No.5366 OF 2009 Page numbers respondents are the defendants. Defendants were declared exparte. Subsequently defendants moved an application for setting aside the order declaring them exparte. Plaintiff had no objection to that application. Before passing an order in that application, plaintiff made a request to the court for reference to the adalath for settlement. The learned Sub Judge declined that request vide Ext.P3 order holding that since the defendant had already been declared exparte such reference cannot be made. Propriety and correctness of Ext.P3 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. The balance court fee payable on the suit claim is substantial and if a settlement could be arrived at by reference to adalath, both parties will be benefited is the submission of the learned counsel W.P.(C).No.5366 OF 2009 Page numbers for the petitioner/plaintiff, which is endorsed by the learned counsel for the respondents as well. In the present writ petition, I need only to go into the question whether there is any impropriety or illegality in Ext.P3 order. Prima facie there appears to be no error or mistake in the reasoning taken by the court below that reference to adalath cannot be made when an order declaring the defendant exparte in the proceedings continued to be in force. All the same, in view of the no objection raised by the plaintiff, the order declaring the defendant exparte could have been set aside and the reference as requested for subject to payment of the balance court fee would have been made. If a settlement is arrived at the adalath needless to point out the decision in the adalath under the Legal Service Authority Act will be deemed to be a decree, and court fee paid is also, to be refunded, then, as per provisions of that Act. The learned counsel for the plaintiff sought W.P.(C).No.5366 OF 2009 Page numbers for extension of time for payment of the court fee. If the petitioner/plaintiff tenders the balance court fee payable on the suit claim within three weeks from the date of this judgment, it shall be deemed as having been paid within time, by the court below. The learned Sub Judge is also directed to consider the application moved by the respondent for setting aside the exparte decree taking note that the plaintiff has no objection in allowing him to come on record so that a settlement can be arrived by the parties. Subject to the above directions the writ petition is disposed. Hand over a copy of the judgment to the counsel on both sides on usual terms and send a copy to the court concerned forthwith. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv W.P.(C).No.5366 OF 2009 Page numbers