IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 21ST OCTOBER 2010 / 29TH ASWINA 1932 OP(C).No. 409 of 2010(O) ------------------------ CMA.6/2010 of SUB COURT, PERUMBAVOOR OS.307/2005 of MUNSIFF COURT, PERUMBAVOOR .................... PETITIONERS: ------------------------------- 1. GOPALAN, AGED 67 67 YEARS, S/O. SANKARAN, THOTTAPPILLY HOUSE, SOUTH VAZHAKULAM KARA, VAZHAKULAM VILLAGE, KUNNATHUNADU TALUK, PIN-683105. 2. BHARGAVI, AGED 65 YEARS, W/O. GOPALAN, THOTTAPPILLY HOUSE, SOUTH VAZHAKKULAM KARA, VAZHAKULAM VILLAGE, KUNNATHUNADU TALUK, PIN-683105. BY ADV. SRI.G.RAJAGOPAL SMT.N.RENJINEE DEVI RESPONDENTS: --------------- 1. M.R. VIJAYAN, AGED ABOUT 46 YEARS, S/O. KRISHNAN, MEKKATTU HOUSE, SOUTH VAZHAKKULAM KARA, VAZHAKKULAM VILLAGE, PIN-682105. 2. SHEELA, AGED ABOUT 44 YEARS, W/O. M.R. VIJAYAN, MEKKATTU HOUSE, SOUTH VAZHAKKULAM KARA, VAZHAKKULAM VILLAGE, PIN-683105. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.409 of 2010 --------------------------------------- Dated this 21st day of October, 2010 JUDGMENT Ext.P6, judgment in C.M.A.No.4 of 2010 of the court of learned Sub Judge, Perumbavoor is under challenge. By that judgment, learned Sub Judge reversed order passed by learned Munsiff, Perumbavoor on I.A.Nos.2276 and 2278 of 2009 to set aside the ex parte decree and to condone the delay of 326 days in filing that application. Petitioners filed O.S.No.307 of 2005 to enforce their prescriptive right of easement over plaint C schedule passing through plaint B schedule belonging to respondent No.2 and for prohibitory and mandatory injunction. Respondents filed written statement denying claim of petitioners and on 24-08-2007 an additional written statement was filed pursuant to the amendment of plaint. The suit was decreed ex parte on 18-10-2008. Then came I.A.Nos.2276 and 2278 of 2009 as above stated for condoning the delay of 326 days. In the affidavit in support of the application to condone the delay respondents stated that they sold plaint B schedule through which the disputed way passes to one Sasindran on 23-08-2007 to the knowledge of petitioners and they were under the impression O.P(C).No.409 of 2010 : 2 : that petitioners would implead the assignee as additional defendant in the suit. They learned about the ex parte decree only from the execution proceedings. Hence the application. The applications were resisted by petitioners contending that there was neither bonafides nor sufficient cause in respondents remaining absent in court. Learned Munsiff dismissed the applications. Respondents took up the matter in appeal. Learned Sub Judge was not very much impressed by the reason stated by respondents for condonation of delay and for their absence in court when the case was taken up in court on 18-10-2008, observed that there is some negligence on the part of respondents but, having regard to the reliefs sought and contentions raised, respondents are to be given an opportunity to contest the suit and accordingly allowed the applications on payment of cost of Rs.3,000/- to the petitioners. That order is under challenge in this petition. It is contended by learned counsel that reason stated by the respondents for condonation of delay and for their absence on 18-10-2008 having been found to be untrue, appellate court should not have shown any indulgence in favour of respondents. It is stated that petitioners are senior citizens who are enjoying the right of easement through plaint B O.P(C).No.409 of 2010 : 3 : schedule and attempt is to prevent them from doing so. Learned counsel also contended that notwithstanding assignment in favour of Sasindran allegedly on 23-08-2007 no mention was made about that in the additional written statement filed by respondents on 24-08-2007. 2. No doubt, it was after a delay of 326 days that application to set aside the ex parte decree was filed and the trial court was not impressed by the reason stated by respondents. According to respondents they had sold plaint B schedule on 23-08-2007. Learned counsel contended that the said statement was not stated in the additional written statement on 24-08-2007. I must bear in mind that additional written statement was made in answer to the amended plaint and in law that additional written statement can only answer amendment carried out in the plaint. Any fresh facts if required to be pleaded by the respondents/defendants can only be through an additional written statement filed with the leave of the court and upon such terms as the Court thinks fit under Order VIII, Rule 9 of the Code of Civil Procedure. Hence there is nothing illegal in not mentioning about the plaint B schedule to Sasindran on 23-08-2007 in the additional writ statement filed on 24-08-2007. O.P(C).No.409 of 2010 : 4 : Respondents have a case that transfer of property to Sasindran was known to the petitioners. However, that explanation of respondents was not accepted by the appellate court. Appellate court thought that on the facts and circumstances of the case respondents must be given an opportunity to contest the case on terms of cost. That is an exercise of the discretionary power of the appellate court. The brooding principle regarding allowing application for restoration of the suit or setting aside the ex parte decree is that a decision shall not be rendered without giving an opportunity of hearing to the party concerned. It has been held that even when there are minor latches or some negligence on the part of party concerned such latches or negligence are to be corrected by the common curative of cost. It is only when negligence or latches is contumacious that courts should not lean in favour of granting a further opportunity to the person guilty of such negligence or latches. Appellate court has not held that there was any contumacious negligence or latches on the part of petitioners. Instead, appellate court observing that there is “some negligence” on the part of respondents allowed it to be corrected by the common curative of cost and allowed the application on cost. That being an act within the power of the O.P(C).No.409 of 2010 : 5 : appellate court, I am not inclined to think that this court should interfere under Article 227 of the Constitution. But I direct learned Munsiff to expedite the trial and disposal of the suit taking into account the fact that petitioners are senior citizens and considering the nature of the relief they have asked for. Learned Munsiff shall give top priority to the disposal of the suit. Resultantly this petition fails and it is dismissed directing learned Munsiff to expedite the trial and disposal of the suit giving it top priority. (THOMAS P JOSEPH, JUDGE) Sbna/-