IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 4TH NOVEMBER 2008 / 13TH KARTHIKA 1930 W.P(C).No. 30309 of 2008(G) ------------------------------------- OS.41/1998 OF PRL.M.C.KOZHIKODE-I .................................. PETITIONER/DEFENDANT : -------------------------------------- M.K.UNNIKRISHNAN, S/O.JANAKI AMMA, AGED 60 YEARS, EDAKKAD AMSOM DESOM, KOZHIKODE DISTRICT. BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENT/PLAINTIFF : ------------------------------------- THAYYIL PANKAJAVALLY, W/O.BALAKRISHNAN NAIR, KARKKAYIL HOUSE, POST EDAKKAD, WEST HILL, KOZHIKODE. ADV. SRI.K.M.FIROZ - R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C).No. 30309/ 2008 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : TRUE COPY OF THE JUDGMENT DATED 25/07/2008 IN A.S. 157/2008 ON THE FILE OF DISTRICT JUDGE, KOZHIKODE COURT DATED 25/07/2008. EXHIBIT P2 : TRUE COPY OF THE DISCHARGE SUMMARY ISSUED BY THE BABY MEMORIAL HOSPITAL IN FAVOUR OF THE PETITIONER DATED 26/11/2005. EXHIBIT P3 : TRUE COPY OF THE DISCHARGE SUMMARY ISSUED BY THE BABY MEMORIAL HOSPITAL IN FAVOUR OF THE PETITIONER DATED 10/03/2006. EXHIBIT P4 : TRUE COPY OF THE ORDER IN I.A.3463/2008 IN O.S. NO.41/1998 ON THE FILE OF PRINCIPAL MUNSIFF-I, KOZHIKODE DATED 22/09/2008. EXHIBIT P5 : TRUE COPY OF THE ORDER IN I.A. NO.3464/2008 IN O.S.41/1998 ON THE FILE OF PRINCIPAL MUNSIFF-I, KOZHIKODE DATED 22/09/2008. EXHIBIT P6 : TRUE COPY OF THE ORDER IN I.A. NO.3381/2008 IN O.S. NO.41/1998 ON THE FILE OF PRINCIPAL MUNSIFF-I, KOZHIKODE DATED 22/09/2008. EXHIBIT P7 : TRUE COPY OF THE ORDER IN I.A. 1815/2008 IN A.S. NO.157/2008 ON THE FILE OF DISTRICT COURT, KOZHIKODE DATED 24/09/2008. /TRUE COPY/ P.A. TO JUDGE scm THOMAS P. JOSEPH, J. ------------------------------ W.P(c) No. 30309 of 2008 ------------------------------ Dated this the 4th day of November, 2008 JUDGMENT Heard counsel on both sides. 2. Petitioner is the defendant in O.S. No.41 of 1998 of the Court of Principal Munsiff, Kozhikode. Suit as originally filed was for prohibitory injunction later amended as one for recovery of possession as per order dated 24-01-2008. Petitioner/defendant filed additional written statement on 11-02-2008. Case came up for trial in the list on 5-06-2008. Respondent/plaintiff filed proof affidavit along with 32 documents. According to the petitioner, he was present in the trial court on 5-06-2008, but noting that he was absent, ex parte decree was passed. That ex parte decree was challenged in A.S. No.157 of 2008 in the court of learned District Judge, Kozhikode. Learned District Judge, for reasons stated in Exhibit P1, judgment allowed the appeal and remanded the case to the trial court directing time bound disposal. Time limit was also prescribed for the petitioner schedule of his witnesses and documents. Petitioner was not able to comply with W.P(c) No. 30309/2008 2 that direction within the specified time. After the time specified, he filed I.A. Nos.3463 of 2008, 3464 of 2008 and 3381 of 2008 to issue summons to his witnesses and receive documents (I am told that around 40 documents were produced by the petitioner). Learned munsiff as per Exhibit P4 to P6 orders, dismissed those applications since petitioner had not filed the schedule of witnesses and documents within the time specified by the learned District Judge in Exhibit P1, judgment. In the meantime after Exhibit P4 to P6 orders, petitioner also attempted a chance before learned District Judge by filing I.A. No.1815 of 2008. Since by that time learned munsiff had already disposed of the applications vide Exhibit P4 to P6 orders, that application also was dismissed. It is challenging Exhibit P4 to P6 orders that petitioner has approached this court under Article 227 of the Constitution. Learned counsel for petitioner states that petitioner may not have any further documents to be produced and what is required is an opportunity to prove his case. Counsel for respondent contends that there was latches on the part of the petitioner in that neither did he produce the documents and application for issue of summons within the stipulated W.P(c) No. 30309/2008 3 time nor make a request for extension to the learned District Judge or the learned munsiff before the expiry of that time. 3. It is true this is a suit of the year 1998, but the amendment incorporating recovery of possession was allowed only on 21-01-2008. It is seen that both sides have produced a number of documents in support of their respective contentions. According to the petitioner, he is a chronic patient and had to trace out documents from the year 1948 onwards which caused the delay. At any rate, learned District Judge was inclined to set aside the ex parte decree and gave the petitioner an opportunity to adduce evidence. In the circumstance, I am inclined to give the petitioner an opportunity to adduce evidence but on payment of cost which in the facts and circumstance of the case is fixed as Rs.2,000/-. Resultantly this writ petition is disposed of in the following lines. 1. Exhibits P4 to P6 orders will stand set aside and I.A Nos. 3463 of 2008, 3464 of 2008 and 3381 of 2008 will stand allowed on condition that petitioner deposited in the trial court for payment to the W.P(c) No. 30309/2008 4 respondent cost of Rs. 2,000/-(Rupees Two Thousand only) within one month from this day. 2. In case cost aforesaid is not deposited, this writ petition will stand dismissed in confirmation of Exhibits P4 to P6 orders. 3. In case petitioner deposited cost aforesaid, the case will stand reopened and the munsiff shall expedite the trial and disposal of the case. THOMAS P. JOSEPH, JUDGE scm