IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 15TH JANUARY 2008 / 25TH POUSHA 1929 WP(C).No. 1771 of 2008(J) ------------------------- OS.35/2000 of SUB COURT,NEYYATTINKARA .................... PETITIONER: ------------- GOPALAKRISHNAN NAIR, S/O. PADMANABHA PILLAI, AGED 60 YEARS,ARUN VIHAR, MURIYATHOTTAM, PARASSALA, THIRUVANANTHAPURAM. BY ADV. SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.MANU V. RESPONDENT: --------------- VIJAYAKUMARAN NAIR, S/O.SANKARA PILLAI, ARUN VIHAR, MURIYATHOTTAM, PARASSALA, THIRUVANANTHAPURAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 1771 OF 2008 --------------------- Dated this the 15th day of January, 2008 JUDGMENT This writ petition is preferred against the order of the Subordinate Judge, Neyyattinkara, in IA 878/06 in OS 35/00. The petition is one for setting aside the ex parte order in the suit for specific performance. As the defendant did not enter appearance, the court was pleased to decree the suit as ex parte. In the restoration application, the ground alleged is that just prior to the date of trial to the case, the defendant had fallen down on account of high blood pressure and was admitted in the hospital. Then an application was moved for an adjournment. Subsequently as he had to undergo further treatment with the Doctor, he was unable to attend the court, which resulted in an ex parte decree. It is true that there is a mistake committed by the Doctor in putting the date as 19.5.05 instead of 19.5.06. But the fact remains that he has been treated for ailment and the Doctor has stated that the difference in date must be only a mistake. This court in the decision reported in Sreedhara Kurup v. Mickel [1968 KLT 599] has given the guidelines, which reads as follows: “It is largely a matter of wise discretion to be exercised by the Court bearing in mind the wholesome principle that the right of a party to be heard should be negatived only if there is gross negligence or gross carelessness and that if some steps have been taken and application for restoration has WPC NO 1771/08 2 been made with some diligence and some evidence adduced making out a sufficient cause for absence, restoration should be ordered, minor misconduct or laches being corrected by the common curative of costs. The brooding spirit of natural justice must be in the background while ascertaining where there is sufficient cause.” 2. From the facts it is clear that in this case the defendant wanted to conduct the case. He moved an application for adjournment. Later, there is evidence to show that he developed high blood pressure and as a result had fallen down and was under treatment. To prove that he had examined witnesses before the court. So there has been proper movement in the right direction by the defendant in the case, for setting aside the ex parte decree. It is true that it is not very well discussed in the order of the court below but the fact remains that the defendant is not grossly negligent or has committed any grave misconduct in prosecuting the case. Therefore as laid down in the decision referred to above, an opportunity has to be given to the defendant. Therefore, I do not find any ground to interfere with the order passed by the court below and the writ petition is dismissed. M.N.KRISHNAN, JUDGE vps WPC NO 1771/08 3