IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 31ST AUGUST 2010 / 9TH BHADRA 1932 WP(C).No. 26987 of 2010(O) -------------------------- OS.250/2006 of SUB COURT, MAVELIKKARA .................... PETITIONERS: --------------- 1. R.VIJAYALEKSHMI AMMA, AGED 32 YEARS, W/O. G.HARIKRISHNAN, THARAYIL VELIKKATU, CHINGOLI.P.O., ALAPUZHA DISTRICT. 2. G.HARIKRISHNAN, REPRESETED BY THE 1ST PETITIONER R. VIJAYALAKSHMI AMMA, W/O. G.HARIKRISHNAN, THARAYIL VELIKKATU, CHINGOLI.P.O., ALAPPUZHA DISTRICT. BY ADV. SRI.M.V.THAMBAN SRI.R.REJI SMT.THARA THAMBAN SRI.B.BIPIN SMT.REVATHY P.NAIR RESPONDENT: --------------- JAYACHANDRAN, S/O. MADHAVAN, THUNDIYIL KIZHAKKATHIL, VALATHUNKALCHERI, IRAVIPURAM VILLAGE, KOLLAM DISTRICT. PIN-671302. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.26987 of 2010 --------------------------------------- Dated this 31st day of August, 2010 JUDGMENT This writ petition is in challenge of Ext.P5, order condoning the delay of 488 days (as stated in the application) and allowing the ex parte decree to be set aside. Petitioner No.2 represented by petitioner No.1 sought for a declaration of his right over the suit property and that sale deed No.1146 of 1999 standing in the name of respondent is not binding on petitioner No.2. Respondent appeared in the court below on 04-01-2007 and requested time to file written statement. Respondent got time to file written statement till 18-03-2007. Respondent did not file written statement on that day. On 19-03-2007 respondent was set ex parte. An ex parte decree was passed on 07-06-2007. Later respondent filed I.A.Nos.1842 and 1843 of 2008 to set aside the ex parte decree and to condone the delay (according to the respondent, 488 days) in filing the application. Respondent claimed that from 05-03-2007 onwards he was laid up due to Rheumatic Paralysis, was not even able to talk, was undergoing treatment under Dr. Viswanathan and on getting relieved from his illness thought about the case, made enquiries and learned about W.P.C.No.26987 of 2010 : 2 : the ex parte decree passed on 07-06-2007. Thereon, he filed the application. Petitioners resisted the application contending that there was no such illness for respondent and that Dr. Viswanathan was not treating the respondent. Petitioners also stated that it is incomprehensible that respondent who was laid up due to rheumatic paralysis travelled for a distance of 40kms to undergo treatment under Dr. Viswanathan. Respondent gave evidence as PW1 and proved Ext.A1, medical certificate dated 26-09-2007. In that medical certificate it is stated that respondent was undergoing treatment under Dr. Viswanathan from 05-03-2007 onwards, respondent recovered by 95% and still he was advised to continue treatment for another six months. Respondent could not examine the Physician concerned since he expired on 01-12-2009. Petitioners did not adduce any evidence. Learned Sub Judge considered the evidence and allowed the applications. It is contended by learned counsel that the delay involved is 570 days and not 488 days and that there is no evidence to show that Dr. Viswanathan had treated the respondent. 2. Assuming that the delay is not 488 days but is 570 days, that does not in any way affect the order under challenge since evidence on record revealed that respondent has been undergoing treatment from 05-03-2007 (he was set ex parte on 19-03-2007 and W.P.C.No.26987 of 2010 : 3 : the ex parte decree passed on 07-06-2007) and that immediately after he recovered from his illness he filed I.A.Nos. 1842 and 1843 of 2008. In the circumstance, exact number of days involved in the delay is only a matter of arithmetical importance and does not in any way affect validity of the order passed by the learned Sub Judge. 3. As regards reason stated by the respondent is concerned, there is his evidence as PW1 which gets corroboration from Ext.A1. Nothing is brought out to discredit evidence of respondent as PW1 and Ext.A1. Unfortunately the physician could not be examined as he expired on 01-12-2009. Learned Sub Judge has considered the relevant aspects and found that respondent was prevented by sufficient cause from not filing the written statement and not applying to set aside the ex parte decree within the prescribed time. The discretion has been exercised in favour of the respondent. I also bear in mind that in respect of the property which stands in the name of respondent as per assignment deed No.1146 of 1999, petitioner No.2 has sought a declaration of title and that the document is not binding on him. There is no reason to think that in such a situation respondent would keep idle and allow the case to be decided ex parte decree. Having regard to these aspects also I find no reason to interfere with the impugned order. W.P.C.No.26987 of 2010 : 4 : 4. Learned counsel requested that since the suit is of the year 2006 trial court may be directed to expedite disposal of the suit. I make it clear that it will be open to the petitioners to request learned Sub Judge to expedite disposal of the suit if all the pre-trial steps are over and if circumstances warranted an early disposal. Writ petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-