IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 29TH AUGUST 2011 / 7TH BHADRA 1933 OP(C).No. 2831 of 2011(O) -------------------------------- CMA.6/2011 of SUB COURT, OTTAPPALAM OS.168/1998 of MUNI-MAGI.COURT,MANNARKAD .................... PETITIONERS: ----------------- 1. AMMINI,AGED 63 YEARS,S/O.LATE KESAVAN, KORAVANPADI,AGALI,MANNARKKAD TALUK. 2. BIJUMON,S/O.AMMINI,KORAVANPADI,AGALI, MANNARKKAD TALUK. BY ADVS. SMT.T.D.RAJALAKSHMI SRI.R.SREEHARI RESPONDENT(S): -------------------- K.J.MATHEW,S/O.KOYIPURATH BABY, 'MINERVA',SHOLAYAR,MANNARKKAD TALUK, PIN 678 581. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 29/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 2831/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF JUDGMENT IN O.S. NO.168/1998 DATED 29/09/2003 OF MUNSIFF-MAGISTRATE COURT, MANNARKAD. P2: COPY OF ORDER PASSED IN I.A. NO.15/2005 IN O.S. NO.168/1998 DATED 13/06/2005 OF MUNSIFF-MAGISTRATE CORUT, MANNARKAD. P3: COPY OF ORDER PASSED IN I.A. NO.16/2005 IN O.S. NO.168/1998 DATED 13/06/2005 OF MUNSIFF-MAGISTRATE CORUT, MANNARKAD. P4: COPY OF MEMORANDUM OF C.M.APPEAL NO.6/2011 OF SUB COURT, OTTAPPALAM. P5: COPY OF AFFIDAVIT FILED IN SUPPORT OF IA.619/2011 IN C.M.APPEAL NO.6/2011 OF SUB COURT, OTTAPPALAM. P6: COPY OF MEMORANDUM OF C.M.APPEAL NO.5/2011 OF SUB COURT, OTTAPPALAM. P7: COPY OF AFFIDAVIT FILED IN SUPPORT OF IA 620/2011 IN C.M.APPEAL NO.5/2011 OF SUB COURT, OTTAPPALAM. P8: COPY OF COMMON ORDER PASSED IN IA 620/2011 IN CMA.NO.5/2011 AND IA 619/2011 IN C.M.APPEAL NO.6/2011 DATED 24/06/2011 OF SUB COURT, OTTAPPALAM. P9: COPY OF JUDGMENT IN C.M.APPEAL NO.6/2011 DATED 24/06/2011 OF SUB COURT, OTTAPPALAM. P10: COPY OF JUDGMENT IN C.M.APPEAL NO.5/2011 DATED 24/06/2011 OF SUB COURT, OTTAPPALAM. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.2831of 2011 --------------------------------------- Dated this 29th day of August, 2011 JUDGMENT Petitioners are the supplemental defendants 2 and 3 in O.S.No.168 of 1998 of the Court of learned Munsiff Magistrate, Mannarkkad. That is a suit filed by the respondent for specific performance of an agreement for sale allegedly executed by Kesavan, predecessor-in-interest of petitioners in respect of 1.68Acres in survey 3135 part of Agaly Village. It is not disputed that the said Kesavan was served summons in the suit, he appeared and filed written statement. On 09.08.1999 it was reported in Court that the said Kesavan expired. Petitioners were impleaded as additional defendants and they filed written statement adopting the contentions taken up by the predecessor- in-interest. The suit came up for trial in the list on 24.09.2003. Counsel for petitioners reported “no instruction”. Respondent adduced evidence and an ex parte judgment and decree were passed on 29.09.2003. After about two years petitioners filed I.A.No.16 of 2005 to set aside the ex parte judgment and decree with I.A.No.15 of 2005 to condone the delay. In the affidavits in support of the applications it was stated that the first petitioner O.P(C).No.2831of 2011 -: 2 :- who was looking after the case was ill disposed of. A medical certificate was produced, no attempt was made to prove the same in evidence. Learned Munsiff-Magistrate observed in Exts.P2, order dated 13.06.2005 (on the application to condone the delay) that no evidence was let in by petitioners and that there is no explanation why the second petitioner could not give instruction to the counsel on the day the case was posted for trial in the list. I.A.No.15 of 2005 was dismissed. Dismissal of I.A.No.16 of 2005 followed. After about six years, petitioners filed C.M.A.Nos.5 and 6 of 2011 before the learned Sub Judge, Ottappalam but, in vain. Hence this original petition. 2. Learned counsel submitted that there was sufficient cause for petitioners not appearing before the learned Munsiff- Magistrate on the listed day. It is submitted by learned counsel that the counsel who was appearing for petitioners in the trial court expired, the clerk of advocate also shifted to some other place and hence petitioners did not get informaiton about the case. Only when the respondent filed application under Sec.28 of the Specific Relief Act in the suit and a copy of that application was served on petitioners, they learned about dismissal of I.A.Nos.15 and 16 of 2011. O.P(C).No.2831of 2011 -: 3 :- 3. Though, learned counsel made a fervent plea to admit the original petition, having heard learned counsel and gone through the materials on record I find no reason to do so. It is not as if petitioners or their predecessor-in-interest had no notice about the suit - they had filed written statements in the case. Ex parte judgment and decree were passed on 29.09.2003 on the counsel reporting 'no instruction' on 24.09.2003. It is after about two years that petitioners filed applications to set aside the ex parte decree and condone the delay. No evidence was let in, in regard to the alleged illness of the first petitioner. Moreover, as observed by learned Munsiff-Magistrate in Ext.P2, order, there was no explanation why the second petitioner could not give instruction to the counsel. It is also difficult to think that in a situation, where the applications to set aside the ex parte decree and condone the delay were dismissed, petitioners did not make any enquiry and were ignorant about the said order for a period of about six years and thus the delay of about six years occurred in filing C.M.A.Nos.5 and 6 of 2011. The circumstances presented before me show contumacious negligence and gross latches on the part of petitioners. The judgment and decree, may be ex parte, passed on 29.09.2003 cannot be set aside for the O.P(C).No.2831of 2011 -: 4 :- mere asking after about eight years. It is in the interest of the State that there should be an end to litigation (Interest, Reipublicae, ut sit finis litium). The law assist those who are vigilant, not those who sleep over their rights (vigilantibus, non dormientibus, jura subveniunt). Interference with the judgment/order passed by the courts below is not warranted. Original petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-