IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 3RD JANUARY 2011 / 13TH POUSHA 1932 OP(C).No. 1319 of 2010(O) ------------------------------------ I.A.NO.2838/2009 IN OS.82/2008 of PRINCIPAL SUB COURT, NORTH PARAVUR .................... PETITIONERS: -------------------- 1. P.R. DHANAVAN, S/O.RAJAPPAN, PARAMBATHERIL VEETTIL, KEDAMANGALAMKARA, PARAVUR VILLAGE. 2. SUJA, W/O.DHANAVAN, PARAMBATHERIL VEETTIL, KEDAMANGALAMKARA, PARAVUR VILLAGE. 3. ARUN SAGAR, S/O.DHANAVAN, PARAMBATHERIL VEETTIL, KEDAMANGALAMKARA, PARAVUR VILLAGE. BY ADV. SRI.K.R.VINOD RESPONDENT(S): -------------------------- 1. ABDUL GAFOOR, S/O.ABDUL RAHIMAN HAJI, PERIYAMKUNNATH VEETTIL, PUTHUPALLIPPURAMKARA, THRIKKAKARA NORTH VILLAGE, KANAYANNUR TALUK, 682 028. 2. NAVAS, S/O.MUHAMMED, THAIPARAMBIL, MANJALY KARA, KARUMALLOOR VILLAGE, 683 511. 3. HASSAN, S/O.ALAVI, KIZHAKKEVALAPPIL, PARAVOOTHARAKARA, PARAVUR VILLAGE, 683 513. 4. ASHRAF, S/O.ISMAIL, PARAKKULATH, THEKKUMPURAMKARA, CHENDAMANGALAM VILLAGE, 683 512. BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 03/01/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs K.T.SANKARAN, J. ------------------------------ O.P(C).No.1319 OF 2010 ------------------------------ Dated this the 3rd day of January, 2011 JUDGMENT The petitioners filed O.S.No.82 of 2008 on the file of the Court of the Subordinate Judge of Paravur against the respondents seeking a decree for permanent prohibitory injunction. The suit was listed for trial. The defendants remained absent. They were set ex parte and the suit was decreed ex parte on 13.8.2009. 2. The first defendant filed I.A.No.2838 of 2009 and the second defendant filed I.A.No.3242 of 2009 under Rule 13 of Order 9 of the Code of Civil Procedure to set aside the ex parte decree. The court below allowed the applications as per Exts.P6 and P7 orders dated 26th October, 2010 on condition of payment of costs of Rs.2,500/- each. Exts.P6 and P7 are under challenge in this Original Petition filed by the plaintiffs. O.P(C).No.1319 OF 2010 2 3. Defendants 1 and 2 filed separate applications for setting aside the ex parte decree. The first defendant contended that he filed O.S.No.35 of 2008 on the file of the Munsiffs Court, Paravur, against the plaintiffs in the present suit. The first defendant herein also filed TOP No.1279 of 2009 before the District Court, Ernakulam praying for withdrawing O.S.No.35 of 2008 from the Munsiff Court,Paravur, to the Sub Court, Paravur, to be tried and disposed of along with O.S.No.82 of 2008 filed by the petitioners herein. The Transfer O.P. was posted to 13.8.2009. According to the first defendant, a stay was granted by the District Court. He also stated that he had gone to the District Court for conducting the Transfer O.P. Therefore, he could not appear in the present suit on 13.8.2009 and accordingly, ex parte decree was passed against him. The first defendant has sworn to the affidavit in support of the application for setting aside ex parte decree on 14.8.2009, the next day on which the ex parte O.P(C).No.1319 OF 2010 3 decree was passed. 4. The second defendant contended that his counsel had relinquished the vakkalath and therefore, another counsel had to be engaged on 13.8.2009. The newly appointed counsel requested for adjournment of the case as per I.A.No.2802 of 2009. The court below did not allow that application and the second defendant was also set ex parte on 13.8.2009. 5. There is no dispute that the first defendant had filed a Transfer OP before the District Court. The learned counsel for the petitioners submitted that in the Transfer OP, no stay was granted and the Transfer OP itself was dismissed on 13.8.2009. The counsel submitted that the first defendant had sworn to a false affidavit stating that stay was granted by the District Court. The counsel also submitted that the reasons stated by the second defendant for getting the ex parte decree set aside O.P(C).No.1319 OF 2010 4 are also not sufficient for granting the prayer. 6. The court below considered the applications and thought it fit to exercise the discretion in favour of defendants 1 and 2 in order to set aside the ex parte decree. The court below was satisfied that a Transfer OP filed by the first defendant was pending. Likewise, the court below was also satisfied that there are sufficient reasons for the second defendant to get an adjournment of the case at the instance of the newly appointed counsel for the second defendant. In short, the court below thought that sufficient opportunity should be given to the defendants to contest the suit on the merits. 7. It is very relevant to note that in the counter affidavit filed by the first plaintiff in I.A.2838 of 2009, (the application filed by the first defendant) it is stated that ex parte decree was passed at 11.30 A.M. at the time of Roll Call O.P(C).No.1319 OF 2010 5 itself. There is no case for the plaintiffs that at that time the Transfer OP was not pending. If so, even if the Transfer OP was dismissed on 13th August, 2010, after 11.30 A.M., that may not be a ground for rejecting the application for setting aside the ex parte decree. 8. The court below has granted costs of Rs.2500/- each in the separate applications filed by defendants 1 and 2. Thus the plaintiffs would get a sum of Rs.5000/- as costs on setting aside the ex parte decree. The amount of costs awarded by the court below is more than reasonable. On that ground also, there is no scope for interference. 9. The plaintiffs would be entitled to realise the costs awarded by the court below. It is made clear that I have not pronounced upon the question whether the affidavit filed by the first defendant was false or not. O.P(C).No.1319 OF 2010 6 For the reasons stated above, I do not think that sufficient grounds are made out by the petitioners for invoking the jurisdiction of this Court under Article 227 of the Constitution of India, even assuming that an Original Petition is the proper remedy. The Original Petition is accordingly dismissed. K.T.SANKARAN, JUDGE. cms