IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 6TH SEPTEMBER 2010 / 15TH BHADRA 1932 WP(C).No. 5076 of 2009(O) ------------------------- CMA.3/2006 of SUB COURT, OTTAPPALAM OS.55/2002 of MUNSIFF COURT, OTTAPPALAM (IA 2699/2005) .................... PETITIONERS: --------------- 1. RADHAKRISHNAN @ RAJAN, AGED 41 YEARS, S/O. MEENAKSHI, MALEPPURAKKAL VEEDU, VADAKKUMBRAM AMSOM, ARAVAKKAD DESOM, OTTAPALAM TALUK. 2. SARADA, AGED 32 YEARS, W/O. RADHAKRISHNAN, MALEPPURAKKAL VEEDU, VADAKKUMBRAM AMSOM, ARAVAKKAD DESOM, OTTAPALAM TALUK. BY ADV. MS.T.D.RAJALAKSHMI MR.R.SREEHARI RESPONDENT: --------------- K. RAMAKRISHNAN, S/O. LATE LAKSHMI, PULIYANKUNNU, KARUVANTHODI, VADAKKUMBRAM AMSOM, ARAVAKKAD DESOM, AMPALAPPARA POST, OTTAPALAM TALUK. ADV. MR.T.RAMPRASAD UNNI MR.J.R.PREM NAVAZ THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 5076 of 2009(O) APPENDIX PETITIONERS' EXHIBITS: EXT.P1: AFFIDAVIT FILED IN SUPPORT OF I.A.NO.2699/05 IN O.S.NO.55/02 DTD. 28.11.2005 OF MUNSIFF COURT, OTTAPPALAM. EXT.P2: COUNTER AFFIDAVIT FILED IN I.A.NO.2699/05 IN O.S.NO.55/02 OF MUNSIFF COURT, OTTAPPALAM. EXT.P3: ORDER DTD.20.2.2006 PASSED IN I.A.NO.2699/05 IN O.S.NO.55/02 OF MUNSIFF COURT, OTTAPPALAM. EXT.P4: JUDGMENT IN C.M.A.NO.3/2006 DTD.21.8.2008 OF SUB COURT, OTTAPPALAM. RESPONDENT'S EXHIBITS: NIL .... // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.5076 Of 2009 ---------------------- Dated this the 6th day of September, 2010. J U D G M E N T Petitioners are the defendants in O.S.No.55 of 2002 on the file of the Munsiff court, Ottappalam. Suit was filed by the respondent herein as plaintiff for mandatory injunction, recovery of possession, prohibitory injunction and damages. The suit was listed for evidence in the ready list on 2.11.2005. There was no sitting on that day. Therefore, the court postponed the case for evidence to 5.11.2005. Petitioners were not present in the court on that date. Therefore the counsel reported no instructions. The court declared the defendants ex-parte and the evidence of plaintiff was recorded and the suit was decreed on 7.11.2005. On 28.11.2005 the petitioners filed I.A.No.2699 of 2005 for setting aside the ex-parte decree. The petition was filed under Order IX Rule 13 of the Code of Civil Procedure. In the affidavit filed in support of the petition for setting aside the decree, it is pleaded that due to illness the first petitioner was laid up and therefore the petitioners could not attend the court. It is also pleaded that there is no willful negligence or latches on their side W.P.(C).No.5076 Of 2009 ::2:: and therefore the ex-parte decree may be set aside. The Petitioners 1 & 2 are husband and wife. The trial court dismissed the application finding that there is no bonafides in filing the petition and that there is absolutely no satisfactory reason for their non-appearance before the court when the case was listed for evidence. Ext.P3 is the order passed by the trial court. Ext.P3 was confirmed by the lower appellate court. Ext.P4 is the judgment in C.M.A.No.3 of 2006. 2. The learned counsel appearing for the respondent seriously opposed the prayer in the writ petition and prayed for dismissal of the same. 3. The decree against the petitioners was happened to be passed without deciding the dispute on merits. It is a fact that the petitioners preferred I.A.No.2699 of 2005 for setting aside the ex-parte decree within a period of three weeks from the date when the court passed the oder setting them ex-parte. It may not be correct to say that there is no bonafides in filing the petition. The very fact that they have filed the application for setting aside the ex-parte order within a period of three weeks from the disposal of the suit itself shows that there is bonafides W.P.(C).No.5076 Of 2009 ::3:: in filing the application. Since the matter was not decided on merits, the court ought to have extended an opportunity to the petitioners by allowing their application at least on terms. In the circumstances, this Court is of the view that an opportunity shall be given to the petitioners to contest the case on merits, on condition that they shall pay Rs.2,000/- (Rupees Two Thousand only) as cost to the counsel for the respondent within a period of two seeks from today. Accordingly, I.A.No.2699 of 2005 is allowed on terms. If the cost is paid within the time fixed by this Court, the trial court shall proceed with the trial of the suit and dispose of the case in accordance with law. The trial court shall hear and dispose of the suit on merits, 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 parties shall appear before the court below on 27.9.2010. The writ petition is disposed of as above. HARUN-UL-RASHID, Judge. bkn/-