IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 1ST JANUARY 2009 / 11TH POUSHA 1930 WP(C).No. 37967 of 2008(T) -------------------------------------------- IA.311/2008 IN OS.87/2007 of MUNI-MAGI.COURT, PATTAMBI .................... PETITIONER: P.SUDHAKARAN ,S/O. DEVAKI AMMA, 49 YEARS, POONOTH HOUSE, MUNDAMUKA AMSOM, SHORANUR OTTAPALAM TALUK. BY ADV. SMT.T.D.RAJALAKSHMI SRI.R.SREEHARI RESPONDENT: MAHESH , ATHIRA NIVAS , KALLIKAD, SANKARAMANGALAM, PATTAMBI, OTTAPALAM TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- W.P.(C)No.37967 of 2008 T -------------------------- JUDGMENT Petitioner is the defendant in O.S.No.87/07 on the file of the Munsiff's Court, Pattambi. The suit was decreed ex parte on 7.4.2008 consequent on non-appearance of the petitioner/defendant, the day on which the case stood posted for trial in the list. Petitioner/defendant filed an application under Order IX Rule 13 CPC for restoration of the suit along with Exhibit P3 affidavit swearing that his absence on 7.4.2008, the day on which the case stood posted for trial, was on account of stomach pain and diarrhoea. The restoration was objected to by the respondent/plaintiff. The court below considered the application on merits and allowed the same on condition of payment of a cost of Rs.5,000/- to the respondent/plaintiff within seven days of the order. The order is dated 15.9.2008. 2. It is vehemently contended before me by the learned counsel for the petitioner/defendant that WPC 37967/08 2 to raise an amount of Rs.5,000/- within a period of one week, in the normal course, is difficult for all clients and further that, in the circumstances of the case, awarding of a cost of Rs.5,000/- is exorbitant and unjustified when the suit is one for recovery of an amount of Rs.25,000/- with interest, cost, etc. and the cost itself works out to 1/5th of the amount alleged to have been borrowed. 3. The submission of the counsel for the petitioner/defendant deserves to be considered giving due weight, especially, in view of the fact that it was on medical ground that absence is explained and restoration of the suit was prayed for. Though awarding of cost is in the discretion of the court, the discretion has to be exercised judiciously and awarding of a cost of Rs.5,000/- in a suit, wherein, the claim is for recovery of a loan amount of Rs.25,000/- with interest, cost, etc., is quite unjustified. I do not propose to order notice and to adjourn the case for the purpose of the respondent/plaintiff also entering WPC 37967/08 3 appearance as cost is being ordered in the discretion of the court and the discretion having been wrongly exercised by the court below, interference by this Court does not warrant issuance of notice to the respondent/ plaintiff and issuing notice will only render delay in disposal of the suit. In the result, allowing this writ petition in part, I reduce the amount of cost from Rs.5,000/- to Rs.500/-. The said amount of Rs.500/- shall be paid to the respondent/plaintiff through his counsel in the court below or shall be deposited in the court below by the petitioner/defendant positively within ten days from today. Petitioner is directed to produce a copy of this judgment in the court below forthwith with notice to the counsel for the respondent. Issue copy of this judgment to the counsel for the petitioner urgently. 1st January, 2009 (K.P.Balachandran, Judge) tkv