IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 6TH FEBRUARY 2008 / 17TH MAGHA 1929 WP(C).No. 36306 of 2007(V) --------------------------------------- CMA.5/2006 OF SUB COURT, SULTHAN BATHERY, OS.98/2002 OF MUNSIFF COURT, KALPETTA .................... PETITIONER/APPELLANT/PETITIONER: -------------------------------------------------------- MANAPPATTU THAZHA JOSEPH, S/O.MATHEW, AGED 55 YEARS, PADINJARATHARA AMSOM DESOM, PADINJARATHARA .P.O., VYTHIRI TALUK. BY ADV. SRI.C.A.CHACKO, SMT.C.M.CHARISMA, SRI.N.A.SHAFEEK. RESPONDENT/RESPONDENT/RESPONDENT: ---------------------------------------------------------------- PULLASSERY KUNJU MUHAMMED, S/O.ALAVI, PUZHAMUDI P.O., VENGAPPILLY AMSOM DESOM, VYTHIRI TALUK, WAYANAD DISTRICT. BY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/02/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.36306/2007-V: APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE ORDER DTD. 27/10/05 OF MUNSIFF COURT, KALPETTA. EXT.P.2: COPY OF THE ORDER DTD. 26/10/97 IN C.M.A. 5/06 OF SUB COURT, SULTHAN BATHERI. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// prv. M.N. KRISHNAN, J. = = = = = = = = = = = = = = W.P.C. NO. 36306 OF 2007 = = = = = = = = = = = = = = = Dated this the 6th day of February, 2008. J U D G M E N T This writ petition is preferred against the order of the the Subordinate Judge, Sulthan Bathery in CMA 5/06. The said CMA was preferred against the order of the Munsiff, Kalpetta in I.A.Nos. 268/05 and 269/05 in O.S.98/02. The suit is one for return of advance amount. The case was posted in the list on 19.12.02. As the defendant did not appear he was set exparte and an exparte decree was passed. Thereafter an execution petition was filed as E.P.108/04 and even to that application he filed an objection on 24.11.04 and the petition for setting aside the exparte order was filed only on 17.2.2005. There was a delay of 758 days in filing the petition application. The Courts below held that the averment that the counsel has not informed about the date of posting of the case cannot be believed. The Court also held that there is no evidence to show that the W.P.C 36306 OF 2007 -:2:- appellant has no knowledge about the posting of the case on 19.12.02 further even after the receipt of the notice in the execution petition and even after filing of objections the petition is filed only in the year 2005. These are all concurrent findings rendered by the Courts below. I am conscious of the fact that if there is no gross negligence or grave misconduct opportunity has to be given. When a client is defending a suit his duty is not over by entrusting it to a lawyer, he has got an ultimate duty to ascertain what has happened to his case. After entrusting his case before the lawyer he had not met the lawyer and ultimately he blame the lawyer that he has not informed him. So it is not a proper conduct. Similarly, even after the receipt of the execution petition he had taken almost three months to file an application. So also it is evident that he is negligent. Both the Courts have appreciated the facts and arrived at a decision. So even if a different view is possible, if two courts have concurrently taken a view, the third Court shall not interfere. Further, I am satisfied that the orders passed by W.P.C 36306 OF 2007 -:3:- the Court below does not suffer from any infirmity, illegality or irregularity. Therefore, the writ petition is dismissed. M.N. KRISHNAN, JUDGE. ul/-