IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 11TH MARCH 2010 / 20TH PHALGUNA 1931 WP(C).No. 3037 of 2010(O) ------------------------- AGAINST THE ORDER DATED 27/10/2009 IN IA 2444/09 OF 2445/09 IN OS.143/2006 of PRINCIPAL SUB COURT, PALAKKAD .................... PETITIONER(S): PETITIONER:DEPONENT: ------------------------------------------------------------- LEELAVATHY, W/O. VELAYUDHAN, MANITHOTTIL KUNNANGATTUPATHY.P.O., KOZHIPATHY, CHITTUR, PALAKKAD. BY ADVS. MR.SAJAN VARGHEESE K. MR.LIJU. M.P. RESPONDENT(S): RESPONDENT:PLAINTIFF: ------------------------------------------------------------------ SUBHALAKSHMI, W/O. MAYIL SWAMI, 11/30, KALINGARAYAR VEEDHI, POLLACHI, COIMBATORE, TAMILNADU. BY ADV. MR.RAJESH SIVARAMANKUTTY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.3037/2010 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S.NO.143/06 ON THE FILE OF SUBORDINATE JUDGE'S COURT, PALAKKAD. P2: COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN O.S.NO. 143/06 ON THE FILE OF SUBORDINATE JUDGE'S COURT, PALAKKAD. P3: COPY OF I.A.NO.3959/08 IN O.S.NO.143/06 ON THE FILE OF SUBORDINATE JUDGE'S COURT, PALAKKAD. P4: COPY OF I.A.NO.3958/08 IN O.S.NO.143/06 ON THE FILE OF SUBORDINATE JUDGE'S COURT, PALAKKAD. P5: COPY OF COMMON ORDER DTD. 19/03/09 PASSED IN I.A.NO.3959/08 AND I.A.NO.3958/08 IN O.S.NO.143/06 ON THE FILE OF SUBORDINATE JUDGE'S COURT, PALAKKAD. P6: COPY OF RESTORATION PETITION VIZ. I.A.NO.2445/09 IN O.S.NO.143/06 ON THE FILE OF SUBORDINATE JUDGE'S COURT, PALAKKAD. P7: COPY OF DELAY CONDONATION PETITION VIZ. I.A.NO.2444/09 IN O.S.NO.143/06 ON THE FILE OF SUBORDINATE JUDGE'S COURT, PALAKKAD. P8: COPY OF THE MEDICAL CERTIFICATE DTD. 17/03/09 PRODUCED ALONG WITH EXT.P6 PETITION. P9: COPY OF THE OBJECTION FILED TO EXT.P6. P10: COPY OF THE OBJECTION FILED TO EXT.P7. P11: COPY OF THE COMMON ORDER DTD. 27/10/09 IN I.A.NO.2445/09 AND I.A.NO.2444/09 IN O.S.NO.143/09 ON THE FILE OF SUBORDINATE JUDGE'S COURT, PALAKKAD. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss P.BHAVADASAN, J. ------------------------------------- WP(C) No.3037 of 2010-O ------------------------------------- Dated 11th March 2010 Judgment In this Writ Petition filed under Article 227 of the Constitution of India, the petitioner seeks the following reliefs : “i. call for the records relating to Exts.P5 to P7 and P9 to P11. ii. set aside Ext.P11 and allow Exts.P6 and P7 as prayed for and permit the petitioner to contest the case viz. OS No.143/06 on the file of Subordinate Judge's Court, Palakkad on merits.” 2. The petitioner is the defendant in OS No.143/06 before the Sub Court, Palakkad, which is a suit for realisation of money based on a mortgage deed. Copy of the plaint in the suit is produced as Ext.P1. It is claimed that the petitioner entered appearance and filed a written statement. She also produced several documents which would indicate that she had no liability to pay any amount WPC 3037/10 2 to the plaintiff. The petitioner submits, when the case was listed on 09.07.2008, since she was ill and was undergoing treatment, she could not attend the Court. That resulted in the Court below passing an ex parte decree. The decree was passed enabling the plaintiff to realise a sum of Rs.1,37,200/- with 6% interest. As soon as the petitioner came to know about the passing of the ex parte decree, she filed IA No.3959/08 seeking to set aside the same, along with an application for condonation of delay in filing the IA. Those applications are produced as Exts.P3 and P4. The Court below allowed the said applications on condition that the petitioner should pay a sum of Rs.2,000/- to the respondent within a period of ten days. A copy of the said order is produced as Ext.P5. But, the petitioner submits, for reasons beyond her control, she failed to pay the amount within the time stipulated in the order. Thereafter, she filed two applications, IA No.2445/09 to restore Ext.P3 application and IA No.2444/09 to condone the delay in filing it. Those applications were dismissed by WPC 3037/10 3 the Court below by Ext.P11 order. The said order is assailed in this Writ Petition. 3. The learned counsel for the petitioner pointed out that the prayers made in the two IAs namely 2444/09 and 2445/09 are only just and proper and all that was intended was to seek extension of time to make the payment, which was ordered to be paid within ten days. It is also claimed that the petitioner has got valid contentions to be urged in the suit. The petitioner submits that if she is not given an opportunity to contest the case, irreparable loss and injury will be caused to her. 4. The learned counsel for the respondent, on the other hand, pointed out that the matter is unnecessarily being dragged by the petitioner with the intention of denying the fruits of the decree to the plaintiff. The claim made by the petitioner that due to reasons beyond her control, she could not make the payment as directed by the Court below, is not justified. Moreover, it is stated that the order directing payment, is a self working order. WPC 3037/10 4 5. Whatever that be, the fact remains that the Court below was inclined to set aside the ex parte decree on condition that the petitioner pays a sum of Rs.2,000/- to the respondent within ten days failing which the application was to stand dismissed. This shows that the Court below was impressed that there is some basis for the case put up by the defendant in the suit. Whether she will be able to substantiate her claim or not, is a different question. But, no irreparable injury will be caused to the plaintiff by giving an opportunity to the defendant to contest the case and have it decided on merits. The fact remains that the defendant is an old lady and therefore, her claim that she was ill and as she was undergoing treatment and so, she could not make the payment within the time stipulated, cannot be ignored. One must remember that she has suffered an ex parte decree. It is unreasonable to believe that she would have deliberately taken the risk of non- payment of the amount and thereby suffer dismissal of her application. Considering the above facts, it is felt that the WPC 3037/10 5 defendant should be afforded an opportunity to contest the case on merits. Accordingly, the impugned order is set aside. The suit is restored to file and the Court below is directed to dispose of the suit as expeditiously as possible at any rate, within six months from the date of receipt of a copy of this Judgment. The amount of Rs.2,000/- directed to be paid by the petitioner shall be deposited by her before the Trial Court within three weeks from today. The Writ Petition is disposed of as above. P.BHAVADASAN, JUDGE sta WPC 3037/10 6