IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 11TH JUNE 2008 / 21ST JYAISHTA 1930 WP(C).No. 12619 of 2008(B) -------------------------- CMA.13/2006 of SUB COURT, OTTAPPALAM EP.113/2007 of MUNSIFF COURT, ALATHUR .................... PETITIONER: ------------ P.K.KANNADASAN, AGED 46 YEARS, S/O.KARUPPUSWAMI, VANDIKKARA HOUSE, KOTTAYIL AMSOM DESOM, ALATHUR TALUK, PALAGHAT DISTRICT. BY ADV. SRI.A.C.DEVASSIA RESPONDENTS: ------------- 1. KOCHUMOL, AGED 33 YEARS, D/O.LATE VENUGOPALAN, KUZHIKKATTIL HOUSE, KUNNIYAMPURAM AMSOM, PANAMANNA DESOM, OTTAPPALAM TALUK, PALAGHAT DISTRICT. 2. RADHAKRISHNAN, S/O.VELAPPAN, KUNNAMPALLY HOUSE, CHITTALIKKARA, ALATHUR TALUK, PALGHAT DISTRICT. BY ADV. SRI.RAJESH SIVARAMANKUTTY FOR R2 SRI.E.R.VENKATESWARAN FOR R1 SRI.R.SREEHARI FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) No.8981/2008 EXT.P1 PHOTO COPY OF THE PLAINT IN O.S.NO.485/2006 DT. 4.12.2003. EXT.P2 PHOTO COPY OF THE WRITTEN STATEMENT IN O.S.NO.485/2006 DT. 13.7.2004 EXT.P3 PHOTO COPY OF THE PROCEEDINGS IN E.P.NO.113/2007 DT. 4.8.2007. EXT.P4 PHOTO COPY OF THE ORDER IN W.P.(C) NO.3414/08 OF HON'BLE HIGH COURT OF KERALA DATED 29.1.2008 EXT.P5 PHOTO COPY OF THE JUDGMENT IN C.M.A.NO.13/2006 AND 14/2006 OF SUB COURT, OTTAPALAM DATED 7.3.2008 //TRUE COPY// P.A. TO JUDGE. M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.12619 of 2008 ------------------------------- Dated this the 10th June, 2008. J U D G M E N T Petitioner is the defendant in O.S.No.485/03, on the file of the Munsiff Court, Ottappalam. First respondent is the plaintiff. An ex-parte decree was passed against the petitioner, on his failure to appear and contest the case on 15.2.2006. Petitioner thereafter filed I.A.No.845/2006, an application under Section 5 of the Limitation Act to condone the delay, and I.A.No.846/2006, a petition under Order IX Rule 13 of Code of Civil Procedure to set aside the ex-parte decree. The case of the petitioner was that he had a fall and sustained grievous sprain on his left ankle, and he was laid up and could not appear. Grounds stated in the petition were opposed by the first respondent. Learned Munsiff dismissed the petitions finding that there is no sufficient cause to condone the delay or to set aside the ex-parte decree. Petitioner challenged that order before the Sub Court, Ottappalam, in C.M.A.Nos.13/2006 and 14/2006. Under Ext.P5 order, learned Sub Judge dismissed both the petitions. Meanwhile, the decree was executed and the property was sold and was purchased by W.P.(C) No.12619/2008 2 second respondent. This petition is filed under Article 227 of the Constitution of India impleading the auction purchaser as second respondent to quash Ext.P5 order. 2. The learned counsel appearing for the petitioner and the learned counsel appearing for second respondent were heard. 3. The argument of the learned counsel for the petitioner is that though the petitioner did not adduce any evidence, considering the fact that he was laid up and therefore he could not not appear and adduce evidence, courts below should have granted an opportunity to the petitioner to have a decision on merits. The learned counsel further argued that suit is based on a promissory note, execution of which was denied and in such circumstances, an opportunity should have been granted. 4. Learned counsel appearing for second respondent argued that Ext.P5 order establish that sufficient opportunity was given to the petitioner and even though the petitions were re-opened and further opportunity was granted to the petitioner to adduce evidence to prove his illness, he did not come to the court or examined, and in W.P.(C) No.12619/2008 3 such circumstances, there is no illegality or irregularity in Ext.P5 order warranting interference and petition is only to be dismissed. 5. It is true that petitions to condone the delay, as well as the petition to set aside ex-parte decree are to be leniently considered. But that does not mean that whenever a petition is filed under Section 5 of the Limitation Act or under Order IX Rule 13 of the Code of Civil Procedure, petitions are to be allowed without considering whether there are grounds either to condone the delay or to set aside ex-parte decree. The suit was admittedly in the special list on 14.2.2006. Petitioner did not appear. Consequently, he was set ex- parte and the suit was decreed ex-parte on the next day, 15.2.2006. Petitioner did not file the application to set aside ex-parte decree within the time. He filed the petition thereafter along with another petition to condone the delay. The reason in the delay petition shows that he was laid up due to a fall, which was denied by the plaintiff. In such circumstances, it was incumbent upon the petitioner to prove that he was laid up, and therefore, he could not appear before the court. Ext.P5 order shows that petitions were posted for adducing evidence by the petitioner on several occasions and he did not adduce evidence and finally it was posted for orders. It further shows that thereafter on W.P.(C) No.12619/2008 4 the prayer of the petitioner, petitions were re-opened and further opportunity was granted. Petitioner did not avail of the opportunity and did not examine himself to prove that he was laid up. Therefore, it was found that there was no sufficient cause to condone the delay or to set aside the ex-parte decree. In such circumstances, I do not find any reason to interfere with Ext.P5. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE nj.