IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 27TH JULY 2009 / 5TH SRAVANA 1931 WP(C).No. 18551 of 2009(O) --------------------------------------- CMA.40/2008 of SUB COURT,NEYYATTINKARA OS.604/2006 of PRL. MUNSIFF COURT,NEYYATTINKARA .................... PETITIONER(S): ----------------------- * ANIL PRAKASH, THAKADIYIL VEETTIL, CHERUPUNNAKKALA, KUNNATHUKAL DESOM, KUNNATHUKAL VILLAGE. *(CORRECTED) * ANIL PRAKASH, MEKKUMKARA VEEDU, PALIYODU, KOTTAKKAL DESOM, ANAVOOR VILLAGE. * PETITIONER'S ADDRESS CORRECTED AS PER ORDER IN I.A.9314/2009 DATED 27/07/2009. BY ADV. MR.R.GOPAN RESPONDENT(S): ------------------------ 1. AMBIKA, VALIYAVILLA PUTHEN VEEDU, LOTTACKAL DESOM, PALIYODU, ANAVOOR VILLAGE. 2. MOHANAN, VALIYAVILLA PUTHEN VEEDU, LOTTACKAL DESOM, PALIYODU, ANAVOOR VILLAGE. R1& R2 BY ADV. MR.G.SUDHEER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.18551 OF 2009 -------------------------- Dated this the 27th day of July 2009 ------------------------------------- JUDGMENT Writ petition is filed seeking the following reliefs. i) Issue as writ of certiorari or order and quash / set aside Ext.P3, P15 and P16. ii) Issue an order and allow Ext.P6 and P8. iii) Such other writ, direction or order this Hon'ble Court deem fit and proper for the circumstances in this case. W.P.(C).No.18551 OF 2009 Page numbers 2. Petitioner is the defendant in O.S 604/2006 on the file of the Principal Munsiff Court, Neyyattinkara. Suit was one for money, and the respondent was the plaintiff. Suit was decreed exparte. Petitioner moved an application for setting aside the exparte decree after getting notice for the execution proceedings contending that no summons was served. That petition was later dismissed on his counsel filing a memo stating that it is not pressed. Two months later the petitioner filed another petition submitting that he had not given any instruction to his counsel not to press the early petition, and as it was so done against his instructions reconsideration of the relief claimed for setting aside the exparte decree was sought for. That petition was filed with a petition to condone delay also. After enquiry, the learned Munsiff dismissed that application against which he preferred a W.P.(C).No.18551 OF 2009 Page numbers C.M.A. The learned Sub Judge after hearing both sides dismissed the appeal. Propriety and correctness of that judgment is impeached in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. Having regard to the facts and circumstances presented and taking note of the impugned judgment passed by the learned Sub Judge, I find that there are circumstances indicating latches on the part of the petitioner / defendant in appearing before the court and contesting the case. But all the same, the facts presented for sustaining the suit claim persuade me to hold that a decision on merits providing opportunity to the petitioner, subject to such terms as required, to contest that claim is necessary to advance the ends of justice. Suit W.P.(C).No.18551 OF 2009 Page numbers claim is based on a document purported to have been executed by the petitioner acknowledging his liability to pay a sum of Rs.40,000/- to the respondent / plaintiff, who are none other than his maternal uncle and aunt for the expenses met by them towards the treatment of his mother, who was looked after by them in her old age. While she was under the care and custody of the respondents, she passed away. The petitioner / son later demanded securities and the documents preserved by his mother which were in the custody of the respondents and, then, he executed an agreement to reimburse the expenses incurred by them for the treatment of his mother, was the basis of the suit claim. Securities and documents were handed over on executing the agreement, but promise thereunder was not honoured, is the case of the plaintiff for filing the suit. The pensionary claims of the mother are now under attachment, it is submitted,to W.P.(C).No.18551 OF 2009 Page numbers to satisfy the decree debt. Such being the facts presented in the case, a decision on merits appears to be essential and an exparte decision without hearing the petitioner / the opposite party appears not conducive to justice. However, the latches and default on the part of the defendant in prosecuting the application, moved for restoration and also the nonpressing of the petition by his counsel at one stage, which is impeached by him, and, subsequent delay even in filing a fresh application, all these circumstances have also to be taken into account. That being so, I find the exparte decree can be set aside only on compensating the injury that is likely to be suffered by the respondents / plaintiffs. Considering the time lag after the passing of the exparte decree and also the other circumstances involved, I direct the petitioner to pay a sum of Rs. 7,500/- as cost,as a condition precedent for setting aside the exparte decree to W.P.(C).No.18551 OF 2009 Page numbers have a fresh decision in the suit on merits. Cost ordered shall be paid to the counsel appearing for the respondents before this court within three weeks from the date of this judgment, and a memo filed evidencing such payment. If cost is not paid as directed within the time fixed, the writ petition shall stand dismissed. In case cost is paid, the learned Munsiff shall dispose the suit as expeditiously as possible, at any rate within a period of six months from the date of receipt of a copy of this judgment. The writ petition is disposed as indicated above. Post for report after three weeks. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv