IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 6TH JANUARY 2010 / 16TH POUSHA 1931 WP(C).No. 26498 of 2009(O) -------------------------- OS.248/2003 of MUNSIFF COURT, ALATHUR .................... PETITIONER: --------------- M.K.OMANA, D/O. KUMARAN, MOSALIPARAMBU VEEDU, KARIYAKUNNU, PUTHUKODE AMSOM DESOM, ALATHUR TALUK. BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P RESPONDENT: --------------- REMANI W/O. CHAMUNNI C.K., MELE CHOORKUNNIL, KANNAMBRA AMSOM DESOM, ALATHUR TALUK. ADV. SRI.JOHN JOSEPH(ROY) FOR R THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX(WPC 26498/09) PETITIONER'S EXTS.: EXT.P1: TRUE COPY OF THE DOCUMENT DATED 23.3.02 ENTRUSTED TO THE PETITIONER BY THE HUSBAND OF THE RESPONDENT. EXT.P2: TRUE COPY OF THE PLAINT IN O.S.NO.248/03 ON THE FILE OF THE MUNSIFF'S COURT, ALATHUR. EXT.P3: TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN EXT.P2 SUIT. EXT.P4: TRUE COPY OF THE ORDER DATED 29.9.08 PASSED IN IA NOS.432/08 & 433/08 IN O.S.NO.248/03 ON THE FILE OF MUNSIFF'S COURT, ALATHUR. EXT.P5: TRUE COPY OF I.A.NO.249/09 IN I.A.NO.433/08 IN O.S.NO.248/03 ON THE FILE OF MUNSIFF'S COURT, ALATHUR. EXT.P6: TRUE COPY OF I.A.NO.248/09 IN I.A.NO.433/08 IN O.S.NO.248/03 ON THE FILE OF MUNSIFF'S COURT, ALATHUR. EXT.P7: TRUE COPY OF I.A.NO.247/09 IN I.A.NO.432/08 IN O.S.NO.248/03 ON THE FILE OF MUNSIFF'S COURT, ALATHUR. EXT.P8: TRUE COPY OF I.A.NO.246/09 IN I.A.NO.432/08 IN O.S.NO.248/03 ON THE FILE OF MUNSIFF'S COURT, ALATHUR. EXT.P9: TRUE COPY OF THE MEMO DATED 20.2.2009 FILED IN EXT.P5. EXT.P10: TRUE COPY OF THE MEMO DATED 20.2.2009 FILED IN EXT.P7. EXT.P11: TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT IN EXT.P5. EXT.P12: TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT IN EXT.P6. EXT.P13: TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT IN EXT.P7. EXT.P14: TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT IN EXT.P8. EXT.P15: TRUE COPY OF THE ORDER DATED 30.7.09 PASSED IN I.A.NOS.246/09, 247/09, 248/09 AND 249/09 IN O.S.NO.248/03 ON THE FILE OF MUNSIFF'S COURT, ALATHUR. EXT.P16: TRUE COPY OF E.P.NO.183/08 IN O.S.NO.248/03 ON THE FILE OF MUNSIFF'S COURT, ALATHUR. S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.26498 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 6th January, 2010 JUDGMENT The Writ Petition is filed seeking mainly the following reliefs: 1. To call for records relating to Exhibits P1 to P16. 2. To set aside Ext.P15 and allow Exts.P5 to P8 as prayed for and permit the petitioner to contest the case viz. O.S.No.248/2003 on the file of Munsiff's Court, Alathur on merits. 2. Petitioner is the defendant in O.S.No.248 of 2003 on the file of the Munsiff Court, Alathur. Suit was instituted for a decree of perpetual prohibitory injunction, but, later amended to one for recovery of possession on the basis of title of the plaintiff over the suit property. An ex parte decree was passed against the petitioner/defendant. An application moved for setting aside the ex parte decree with a petition to condone the delay was disposed on terms directing the petitioner/defendant to pay a sum of Rs.1500/- to the respondent/plaintiff within the period specified. Since cost ordered was not paid, the application filed for setting aside the ex parte decree was dismissed. Pursuant thereto, the petitioner/defendant moved a review petition, that too with a delay W.P.C.No.26498/09 - 2 - condonation petition, depositing the cost ordered seeking review of the order dismissing her application and permitting to contest the suit on merit setting aside the ex parte decree. The learned Munsiff, after hearing both sides, dismissed the review petition and also petition to condone the delay vide P15 order. Challenge in the writ petition is against P15 order requesting for setting aside the ex parte decree to have a decision on merits. 3. I heard the counsel on both sides. It is submitted by the learned counsel for the petitioner, a sum of Rs.3000/- was tendered along with the review petition seeking for restoring the previous order allowing the application moved for setting aside the decree on payment of the cost fixed by the court. Suit property is stated to be the only assets of the petitioner/defendant and indulgence of the court is canvassed for an opportunity to resist the suit claim by substantiating the defence canvassed by leading evidence. Suit was decreed twice ex parte and the petitioner was not at all vigilant, but, culpably negligent and she is not entitled to any further opportunity to have a decision on merits and the suit was instituted as early in 2003 are pointed out by the learned counsel for the respondent that no interference with the orders passed by the court below is called W.P.C.No.26498/09 - 3 - for. After hearing the counsel at length and perusing the materials tendered with the writ petition, though there are circumstances indicating negligence and also default to some extent on the part of the petitioner/defendant in prosecuting her defence, I find that she can be granted one more opportunity to have a decision on merits in the suit subject to compensating the injury likely to be suffered thereby by the respondent/plaintiff. Petitioner shall pay a sum of Rs.5000/- as cost to the respondent/plaintiff as a condition precedent to allow her to contest the suit on merit after setting aside the ex parte decree. It is submitted a sum of Rs.3000/- has already been deposited before the court below at the time of filing of the petition. If that be so, she shall deposit the balance amount of Rs.2000/- before the court below within four weeks from the date of receipt of a copy of this judgment. In case, there was no previous deposit as indicated, she shall deposit the entire sum of Rs.5000/- within the time stipulated above before the court below. If the amount imposed as cost is deposited before the court below, the orders passed dismissing the review petition and also the application for setting aside the ex parte decree shall stand reversed and the court below shall restore the suit to file and dispose it afresh after trial in W.P.C.No.26498/09 - 4 - accordance with law. If cost is not deposited as directed, the dismissal of the application for setting aside the ex parte decree and also the review petition passed by the court below shall remain undisturbed. Writ Petition is disposed as indicated above. Send a copy of the judgment to the court concerned forthwith. srd S.S. SATHEESACHANDRAN, JUDGE