IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 16TH JANUARY 2008 / 26TH POUSHA 1929 WP(C).No. 29345 of 2007(R) -------------------------- CMA.82/2007 of II ADDL. DISTRICT COURT, PALAKKAD OS.427/2000 of PRINCIPAL SUB COURT, PALAKKAD .................... PETITIONER: ------------ BABY GIRIJA, W/O. SUNDARAN, RESIDING AT 'SREYAS', NANGAMKURISSI, THEKKEDESOM VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.V.CHITAMBARESH SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU RESPONDENTS: ------------- 1. NARAYANAN, S/O. CHAMU, RESIDING AT PATTIYA MANGALAM, NAYARADI VILLAGE, CHITTUR TALUK, NOW RESIDING AT KRISHNAS, MUYYALIPARAMBIL, CHITTUR VILLAGE, PALAKKAD DIST. 2. R.MAHESWARI, W/O. RAVI CHANDRAN, RESIDING AT MANIVIRUNNAN KALATH, POLLACHI ROAD, VALIYAVALLAMPATHY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. R1 BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P SRI.N.K.SUBRAMANIAN R2 BY ADV.SRI.S.ANANTHAKRISHNAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/01/2008 ALONG WITH WPC NO. 34308 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO 29345/07 APPENDIX PETITIONER'S EXHIBITS: EXT.P1. COPY OF THE ORDER IN IA NO 1475/06 IN OS NO. 427/00 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE OF PALAKKAD DT. 19.3.07 EXT.P2. COPY OF THE JUDGMENT IN CMA NO.82/07 ON THE FILE OF THE COURT OF THE DISTRICT JUDGE OF PALAKKAD DT. 18.8.07. /TRUE COPY/ PA TO JUDGE. M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 29345 & 34308 OF 2007 --------------------- Dated this the 16th day of January, 2008 JUDGMENT These two writ petitions are filed against the order of the Additional District Judge, Palakkad, in C.M.A. Nos. 82/2007 and 83/2007. Petitioners before me are defendant Nos. 1 and 2 in O.S. 427/2000, pending before the Principal Sub Court, Palakkad. 2. The suit is one for specific performance of a contract. The suit was included in the list on 25.5.06. It is the case of the petitioners that they had originally entrusted the case to one Advocate R. Manikandan from whom they have taken back the file and entrusted to Advocate K.Sasidharan and as the name of Mr. K.Sasidharan does not appear in the list published, they were unable to come to the court to conduct the case. Therefore, they wanted the ex parte decree to be set aside. 3. On the other hand, the plaintiff in the suit would contend that the applications are without any bonafide and it is only a calculated attempt to protract the litigation and they were fully aware of the posting of the case in the list during that period. Both the courts below approached the entire matter on a technical angle WPC Nos. 29345 & 34308 of 2007 2 rather than taking into consideration the principles of natural justice. The courts below found that as the vakalath by Sri. K.Sasidharan is filed only in the month of June 2006, there was subsisting vakalath for Sri.R. Manikandan and therefore, the contention of the defendants cannot be accepted. One fact remains is that the petitioners herein wanted to change the lawyer. Always there may be some gap between the relinquishment of a vakalth and filing of a new vakalath obviously for various reasons. The principles to be followed are laid down by this court in the decision reported in Sreedhara Kurup v. Mickel [1968 KLT 599] , 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 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.” 4. It is this brooding principle of justice that has not been considered by the courts below. The materials available would show that the applications for setting aside the ex parte decree has been filed within time and materials are placed for explaining the cause for WPC Nos. 29345 & 34308 of 2007 3 non-presence. So the petitioners have moved in the right direction to explain their absence on that particular day. Their conduct do not amount to gross negligence or grave misconduct. So under such circumstances, it is only correct to give them an opportunity. But for the inconvenience caused to the other side they can be directed to pay some costs. In the result, both writ petitions are allowed. The orders are set aside and the ex parte decree is set aside on payment of a cost of Rs.1,000/- each by the 1st and 2nd defendants to the plaintiff within a month from today. If the said amount is paid, within one month from today, the court below shall restore the suit back to file by setting aside the ex parte decree and thereafter dispose of the case after giving opportunity to both parties to produce documents and adduce evidence in support of their respective contentions. In case of default of making the payment, automatically the application for setting aside the decree will stand dismissed. Parties are directed to appear before the court below on 16.2.2008. M.N.KRISHNAN, JUDGE vps WPC Nos. 29345 & 34308 of 2007 4