IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 20TH SEPTEMBER 2010 / 29TH BHADRA 1932 WP(C).No. 1086 of 2009(D) -------------------------------------- OS.117/2007 of SUB COURT, KATTAPPANA .................... PETITIOERS/PETITIONERS-DEFENDANTS 5 AND 7 -------------------------------------------------------------------------- 1. ROBERT. M.R, S/O ROBERT, MULLOR HOUSE, CHELLARCOVIL.P.O, ANAKKARA VILLAGE. 2. JAMES, S/O.ROBERT, MULLOR HOUSE, CHELLARCOVIL.P.O, ANAKKARA VILLAGE. BY ADV. SRI.PHILIP T.VARGHESE, SRI.THOMAS T.VARGHESE. RESPONDENT/RESPONDENT-PLAINTIFF ------------------------------------------------------------ AGNES GEORGE, D/O.AUGUSTINE, CHERUVILA PURAYIDATHIL,C-29, CHERAN NAGAR, THIRUPPUR, TAMIL NADU. BY ADV. SRI.SUBAL J.PAUL, SMT.SHEEBA SUBAL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/09/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 1086/2009-D APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN O.S. NO.117/2007 OF THE SUB COURT, KATTAPPANA DATED 11/11/2007. EXT.P2: COPY OF THE ORDER IN I.A. NO.946/2008 IN O.S. NO.117/2007 DATED 21/11/2008. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs. HARUN-UL-RASHID,JJ. ------------------------------- W.P.(C). NO.1086 OF 2009 ------------------------------- DATED THIS THE 29TH DAY OF SEPTEMBER, 2010 JUDGMENT Defendants 5 and 7 in O.S.No.117/07 on the file of the sub Court, Kattappana are the petitioners. Plaintiff in the suit is the respondent herein. The suit was filed for partition. The petitioners were set ex parte in the suit on 18/6/2008 for the reason that they did not file written statement in time. They filed I.A.No.946/08 to set aside the order declared them ex parte. In the affidavit filed in support of the IA the petitioners had explained the reasons for not filing the written statement in time. The petitioners submitted that the said application was not opposed by the respondent/plaintiff by filing any objection. However, IA.No.946/08 has been dismissed by the court below. Ext.P1 is the copy of the plaint and Ext.P2 is the order under challenge. 2. The petitioners filed I.A.No.946/08 praying for -2- WP(C).No.1086/2009 setting aside the order dated 18/6/08 declaring them ex parte. I have gone through the affidavit filed in support of IA.No.946/08 and I find that the petitioners had stated the reasons for not filing the written statement in time. 3. In the interest of justice, this Court is of the view that an opportunity should be given to the petitioners to contest the case on merits. The court below ought to have allowed the petition at lest on terms; but that was not done. In the circumstances, Ext.P2 order is set aside. I.A.No.946/08 stands allowed. The Sub Court, Kattappana is directed to proceed with the case and dispose of the same on merits in accordance with law. Writ Petition is disposed of as above. HARUN-UL-RASHID, Judge. kcv.