IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 25TH MAY 2009 / 4TH JYAISHTA 1931 WP(C).No. 1093 of 2009(E) ------------------------- CMA.72/2007 of DISTRICT COURT, THALASSERY OS.347/2006 of PRL.M.C.,KANNUR .................... PETITIONER(S): -------------------------- CHANDRI, W/O. KUNHAMBU, AGED 68, EDACHERI, P.O. PALLIKUNNU, KANNUR. BY ADVS. SMT.K.K.CHANDRALEKHA, MR.GOPAKUMAR G. (ALUVA) RESPONDENT(S): -------------------------- 1. A.BHARATHAN, S/O.KUNHIKANNAN, AGED 65, P.O. PALLIKUNNU, KANNUR. 2. NARAYANI, W/O.ACHUTHAN, AGED 70 YEARS, NALANCHI HOUSE, NEAR KANAL AYYAPPA MADAM, P.O. KAKKAD, KANNUR – 5. 3. LAKSHMI, W/O.KUNHIKANNAN, AGED 60, MANJERIKANDY HOUSE, KAPPAKADAVU P.O., AZHEEKKAL, KANNUR. R1 BY ADVS. MR.S.ANANTHAKRISHNAN, MR.N.K.SUBRAMANIAN. R2 BY ADV. MR.P.M.PAREETH R3 BY ADVS. SMT.K.A.SANJEETHA, SMT.R.S.SUJITHA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/05/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.1093/2009 E APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER DTD. 20/03/2007 IN I.A.505/07 AND 506/07 OT THE MUNSIFF COURT, KANNUR. P2: COPY OF THE ORDER DTD. 17/09/2008 IN CMA 72/07 OF THE DISTRICT COURT, THALASSERY. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.1093 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 25th May, 2009 JUDGMENT The Writ Petition is filed under Article 227 of the Constitution of India seeking the following reliefs: 1. To set aside the order dt. 17.9.2008 in CMA 72/07 of the District Court, Thalassery and allow I.A.505/07 and 506/07 in O.S.No.347/06 of the Munsiff Court, Kannur. 2. To make such other and further relief this Hon'ble court deems fit and proper. Petitioner is the second defendant in O.S.No.347/06 on the file of the Munsiff Court, Kannur, in which a preliminary decree against her was passed ex parte. She moved an application with a petition to condone the delay of 89 days under Order 9 Rule 13 C.P.C. to set aside the ex parte decree. The application was resisted by the counter petitioners/ the plaintiff and other defendants in the suit. In the enquiry on the petition, the petitioner was examined as P.W.1 and no counter evidence was let in by any of the counter petitioners. In the endorsement returning the summons issued to the petitioner, the Process Server had noted “refused” and in the affidavit filed in support of her petition to set aside the ex parte decree, the petitioner W.P.C.No.1093/08 - 2 - had advanced a case that such endorsement was fraudulently incorporated by the Process Server at the influence of the plaintiff and when examined before the court, the petitioner did not specifically give evidence to support the case so advanced was given consideration, perhaps more significance by the learned Munsiff to hold that the petitioner had not made out sufficient cause for setting aside the decree. The view so formed by the learned Munsiff found approval by the learned District Judge also for dismissing the appeal preferred by the petitioner against the dismissal of her application by the learned Munsiff. Correctness and legality of the orders passed by the learned Munsiff and the learned District Judge, Exts.P1 and P2 respectively, are sought to be assailed by invoking the supervisory jurisdiction of this court under Article 227 of the Constitution. 2. I heard the counsel on both sides. The petitioner, the 2nd defendant in the suit, did not get an opportunity to present her case and get a decision on merits and she has tenable and valuable contentions to be raised in the suit, the conclusions found by the learned Munsiff and also by the learned District Judge in negativing her request for setting aside the ex parte decree are not based on sound and correct legal principles and, at any rate, the application W.P.C.No.1093/08 - 3 - for setting aside the ex parte decree deserve to be allowed at least on terms compensating the injury likely to be suffered by the plaintiff and other defendants/respondents in the present petition, are the submissions of the learned counsel for the petitioner. On the other hand, the learned counsel for the plaintiff and also the first defendant strenuously opposed the request made by the petitioner contending after passing of the preliminary decree the Commissioner has visited the property and prepared a report and plan with the assistance of a surveyor demarcating the properties to be allotted to the respective sharers. The petitioner has not suffered any injury under the ex parte decree, according to the counsel for the respondents. The only question arising for consideration is whether the conclusion formed by the learned Munsiff and also the learned District Judge that the petitioner had not shown sufficient cause for setting aside the ex parte decree suffers from any infirmity warranting interference. In this context, it has to be noted courts as instrumentalities of justice have to render decision to the extent possible on merits, after giving opportunity to both sides to present their respective case. The word 'sufficient cause' under Order 9 Rule 13, it is time and again pointed out by this court as well as the apex court is an elastic expression and W.P.C.No.1093/08 - 4 - in considering whether cause has been made out, even the merits of the case can also be looked into. On the factual aspects presented in the case, it is seen that the petitioner had moved an application within a span of three months after the expiry of the period provided under law with a petition to condone the delay to set aside the ex parte decree passed against her. Other than the endorsement made by the Process Server that there was an improper refusal on the part of the petitioner to receive the summons, there was nothing more on record that in fact she had refused to accept the summons. She got herself examined as a witness to substantiate her cause for non appearance and no counter evidence was let in by any of the contesting parties. When that be so, the learned Munsiff should have exercised his discretion in her favour giving her an opportunity to present her case and to have a decision on merits. At the same time, the injury likely to be suffered by the plaintiff and other defendants in setting aside the decree also deserve to be compensated. So much so, it is ordered that in reversal of Exts.P1 and P2, the ex parte decree passed in the suit shall stand set aside subject to the condition that the petitioner shall pay a cost of Rs.3500/- each to the plaintiff-first respondent and the second respondent, who alone have W.P.C.No.1093/08 - 5 - appeared before this court, within a period of three weeks from the date of this judgment. Cost ordered shall be paid to the respective counsel appearing for the respondents in this court. In default of payment of cost within the time stipulated, the Writ Petition will stand dismissed without any further orders. If cost is paid as directed above, Exts.P1 and P2 orders shall stand set aside with the application of plaintiff for setting aside the ex parte decree allowed. The Writ Petition is disposed as above. Post after three weeks for compliance. srd S.S. SATHEESACHANDRAN, JUDGE