IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 13TH DECEMBER 2011 / 22ND AGRAHAYANA 1933 OP(C).NO. 4073 OF 2011(O) ------------------------------------------ AGAINST THE ORDER IN IA 42/2011 IN OS.2/2009 OF MUNSIFF COURT, PUNALUR PETITIONER: -------------------- CHINNAMMA MATHAI, AGED 85, W/O.LATE THOMAS MATHAI, MANNIL PEEDIKAYIL HOUSE, EMS COLONY, KULATHUPUZHA, PATHANAPURAM TALUK. BY ADV. SRI.SEBASTIAN PAUL SRI.M.I.JOHNSON RESPONDENT(S): ------------------------ 1. ACHANKUNJU, 65 YEARS, S/O.CHAKKO, KOTTARATHILVEEDU, NEDUVANNUR KADAVU, KULATHUPUZHA, PATHANAPURAM TALUK-691 310. 2. AMMINI, AGED 62, W/O.ACHANKUNJU, KOTTARATHILVEEDU, NEDUVANNUR KADAVU, KULATHUPUZHA, PATHANAPURAM TALUK-691 310. 3. A.JALEEL, AGED 37, S/O.ABDUL MAJEED, THOUFI MANZIL, BLOCK 38, EMS COLONY, KULATHUPUZHA, PATHANAPURAM TALUK-691 310. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 13/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P(C) NO.4073 OF 2011 APPENDIX PETITIONER(S)' EXHIBITS: EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S. NO.2 OF 2009 OF THE MUNSIFF'S COURT, PUNALUR. EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 22.12.2010 IN O.S. NO.2 OF 2009 OF MUNSIFF'S COURT, PUNALUR. EXHIBIT P3 TRUE COPY OF THE ORDER DATED 20.10.2011 IN I.A. NO.42 OF 2011 IN O.S. NO.2 OF 2009 OF MUNSIFF'S COURT, PUNALUR. RESPONDENT(S)' EXHIBITS: NIL TRUE COPY P.S. TO JUDGE THOMAS P.JOSEPH, J. ==================================== O.P(C) No.4073 of 2011 ==================================== Dated this the 13th day of December, 2011 J U D G M E N T Petitioner, a lady as learned counsel submits aged 85 years, challenges Ext.P3, order dated 24.10.2011 on I.A. No.42 of 2011 in O.S. No.2 of 2009 of the court of learned Munsiff, Punalur. She sued the respondents for a decree for prohibitory injunction against trespass into the suit property or opening a new pathway through the said property. Respondents 1 to 3 appeared and filed written statement but at the time of trial the third respondent remained absent. Third respondent was not set ex parte by a specific order. Leaned Munsiff recorded evidence and decided the suit against respondents 1 to 3. That was followed by third respondent filing an application under Rule 13 of Order IX of the Code of Civil Procedure (for short, “the Code”) as if the decree passed against him is 'ex parte'. That application was resisted by petitioner contending that there is no order setting the third respondent 'ex parte' the decision taken against him is on merit and the application under Rule 13 of Order IX of the Code is not maintainable. That objection did not weigh with the learned Munsiff who allowed the application and set aside the decree against the third respondent O.P(C) No.4073 of 2011 -: 2 :- as if it is an ex pate decree against him. Learned counsel submitted that contention of third respondent that the decree against him is set ex parte cannot be accepted since there is no order setting him ex parte and that the judgment and decree are passed on merit. 2. Even if the third respondent was not set ex parte by a specific order, if the decree was passed in his absence it is an ex parte decree so far as he is concerned. That is the spirit of Rule 13 of Order IX of the Code. Therefore except in cases covered by Rule 3 of Order XVII of the Code, application to set aside the ex parte decree is maintainable. Decision of this Court in 1979 KLT SN 41 (Case No.84) also supports that view. 3. Therefore merely because the decision is on merit, it cannot be said that it is not ex parte so far as the third respondent is concerned who was absent at the time the decree was passed. 4. In other respects learned Munsiff found from the materials on record that there was sufficient cause for the third respondent for his absence in court on the day the case was taken up for trial. Though Ext.A1, medical certificate was not properly proved, it would show that the third respondent was O.P(C) No.4073 of 2011 -: 3 :- suffering from typhoid during the time learned Munsiff passed the judgment and decree. Having regard to the circumstances stated I do not find reason to interfere with the impugned order. 5. Now the suit is posted for trial on 19.12.2011 so far as the third respondent is concerned. Learned counsel submits that it may be difficult for petitioner who is aged 85 to attend the court. I make it clear that if any request for examination of petitioner on Commission is made learned Munsiff, having regard to the circumstances stated shall consider the same and pass appropriate orders. Original Petition is disposed of as above. THOMAS P. JOSEPH, JUDGE. vsv