IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 25TH JANUARY 2011 / 5TH MAGHA 1932 WP(C).No. 30801 of 2004(P) ------------------------------------- OS.231/2002 of MUNI-MAGI.COURT,THODUPUZHA .................... PETITIONER(S): --------------------- VANAPPURAM GRAMA PANCHAYATH, VANNAPPURAM P.O., THODUPUZHA, REPRESENTED BY ITS SECRETARY. BY ADV. SRI.GEORGE THOMAS (MEVADA) RESPONDENT(S): ------------------------ MRS.SUHADA, W/O. MOHAMMED, KUTTIVEETTIL HOUSE, KALIYAR KARA, VANNAPPURAM VILLAGE, VANNAPPURAM. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.30801/2004 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER DTD. 3.1.03. P2:- COPY OF THE PETITION AND ORDER IN IA. 30/2003 DTD. 10.3.03. P3:- COPY OF THE PETITION AND ORDER IN IA. 982/03 AND 983/03 DTD. 10.11.03. TRUE COPY P.A. TO JUDGE tss HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.30801 Of 2004 ---------------------- Dated this the 25th day of January, 2011. J U D G M E N T The petitioner is the Vanappuram Grama Panchayath. Petitioner is the defendant in O.S.No.231 of 2002 on the file of the Munsiff Court, Thodupuzha. The writ petition is filed challenging the common order passed by the learned Munsiff in I.A.Nos.982 & 983 of 2003 in the suit. The common order is marked as Ext.P3. The respondent filed O.S.No.231 of 2002 for declaring the plaintiff's possession over the plaint schedule property, fixation of boundary and for permanent prohibitory injunction restraining the defendants, its officers and men from trespassing over the plaint schedule property and reducing any portion of it into their possession and from annexing it to the bus stand and from demolishing or pulling down any portion of the building in the plaint schedule property. 2. The learned Munsiff posted the case for filing written statement finally to 22.10.2002. Finding that the written statement was not filed on that date, the learned Munsiff set the defendant ex-parte. On 4.1.2003 the Secretary of the ::2:: W.P.(C).No.30801 Of 2004 Panchayath filed a petition supported by an affidavit to set aside the ex-parte order dated 22.10.2002 and to allow the defendant to contest the suit. The said petition filed as I.A.No.30 of 2003 is marked as Ext.P2. The Secretary of the Panchayath in the affidavit in Ext.P2 deposed that the plaintiff earlier filed O.S.No.240 of 1999 against the Panchayath for the very same relief and the said suit was withdrawn by her on 4.6.2002. It is also averred that for preparing written statement relevant documents in O.S.No.240 of 1999 was necessary and the materials could not be collected in spite of due diligence before 22.10.2002. It is further averred that the failure in filing the written statement is neither willful nor by negligence. It happened due to the aforesaid reason and therefore prayed to set aside the ex-parte order dated 22.10.2002 and to allow the defendant to contest the suit on merits. 3. The petitioner/defendant filed the above said I.A.No.30 of 2003 on 4.1.2003. A written statement was also filed along with the I.A on the same date. On 10.3.2003 the learned Munsiff passed an order which reads as follows: ::3:: W.P.(C).No.30801 Of 2004 “Allowed to continue the proceedings” The grievance of the defendant is that though the I.A was filed to set aside the ex-parte order the court did not set aside the ex- parte order, instead passed the order extracted above. In the circumstances, the petitioner filed I.A.No.982 & 983 of 2003 stating that unless the written statement is accepted the Panchayath is unable to adduce evidence and without the written statement there will not be any proper adjudication of the controversy in the suit. In that context, the petitioner filed the above said I.As, one for reviewing the order and the other for condoning 92 days' delay in filing the review petition. 4. The grievance of the petitioner is that due to the non- filing of the written statement within the time prescribed by the court the petitioner was set ex-parte. In spite of the petitions filed to set aside the ex-parte order the court only permitted the defendant to continue proceedings, at the same time, since the written statement was not accepted and the ex-parte order was not set aside, the petitioner genuinely apprehend that there will not be a proper adjudication of the dispute between the parties. ::4:: W.P.(C).No.30801 Of 2004 5. For the ends of justice, this Court is of the view that the petitioner shall be allowed to contest the case on merits. For an effective adjudication of the matter the written statement of the petitioner shall be accepted and the petitioner shall be given reasonable opportunity to adduce evidence and to contest the case. 6. In the said facts and circumstances, this Court order that Ext.P3 order passed the learned Munsiff in I.A.No.30 of 2003 is set aside. The learned Munsiff is directed to accept the written statement filed and to proceed with the trial of the suit in accordance with law after affording opportunity to both sides to adduce evidence. Appropriate orders shall be passed in I.A.Nos.982 & 983 of 2003 in the light of the direction issued by this Court. The writ petition is disposed of as above. HARUN-UL-RASHID, Judge. bkn/-