IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 4TH MARCH 2009 / 13TH PHALGUNA 1930 WP(C).No. 6979 of 2009(O) AGAINST THE ORDER DATED 28/01/2009 IN IA.NO. 707 & 708/08 IN OS.25/2007 OF MUNSIFF-MAGISTRATE COURT,PATTAMBI PETITIONER: --------------- KAMMAD, S/O. PARAMBIL MAMIKUTTY 57 YEARS, PARAMBIL HOUSE, KALLADIPETTA AMSOM, MULLURKARA DESOM, OTTAPALAM TALUK. BY ADV. SMT.T.D.RAJALAKSHMI SRI.R.SREEHARI RESPONDENT: --------------- E.K.ABDUL LATHEEF, S/O. KUNHIMOHAMMED EDATHODI KAKKASERY HOUSE, POST MOORKANAD, MALAPPURAM DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C) NO. 6979 OF 2009 O ------------------------------------------------------ Dated this the 4th March, 2009 JUDGMENT The petitioner filed O.S.No.21 of 2007, on the file of the Court of the Munsiff-Magistrate of Pattambi, for a mandatory injunction directing the respondent/defendant to return the cheque, bearing No.942922, which was entrusted by one P.K.Kunhumoidu to the defendant. The suit was decreed exparte on 31.3.2008. The respondent herein filed I.A.No.708 of 2008 under Order IX Rule 13 of the Code of Civil Procedure, to set aside the exparte decree. To condone the delay of four months and twelve days in filing the application to set aside the exparte decree, the respondent filed I.A.No.707 of 2008. The court below allowed these applications by the order dated 28.1.2009, which is under challenge in this Writ Petition. By the order impugned, the application under Order IX Rule 13 of the Code of Civil Procedure was allowed on condition of payment of a cost of Rs.2,500/- to the petitioner. 2. Learned counsel for the petitioner submitted that the court below was not justified in allowing the applications, after having found that there is no sufficient ground to condone the delay and to set aside the exparte decree. The counsel submits that having found so, the court W.P.(C) NO.6979 OF 2009 :: 2 :: below had no other alternative but to dismiss the applications. The counsel submitted that on the basis of the cheque in question, the respondent had filed C.C.No.55 of 2007, on the file of the Court of the Judicial Magistrate of the First Class I, Perinthalmanna, against the petitioner under Section 138 of the Negotiable Instruments Act. The petitioner produced the judgment dated 31.3.2008 in O.S.No.21 of 2007 before the Criminal Court. The application under Order IX Rule 13 was filed by the respondent only thereafter. The counsel also submitted that the petitioner was acquitted in C.C.No.55 of 2007. According to him, all these facts should have been taken note of by the court below in considering the application under Order IX Rule 13 of the Code of Civil Procedure. 3. It is true that the respondent had filed C.C.No.55 of 2007 against the petitioner. It is also true that he was acquitted in that case as per Ext.P9 judgment dated 16.10.2008. But, the acquittal is not on the basis of the decree in O.S.No.21 of 2007. The application under Order IX Rule 13 was filed before the disposal of C.C.No.55 of 2007. It is true that there was delay in filing the application under Order IX rule 13. The respondent did not adduce any evidence in the said application. All these facts were taken note of by the court below and held that the respondent has not established sufficient cause for condonation of the delay. The W.P.(C) NO.6979 OF 2009 :: 3 :: court below, however, exercised the discretion in favour of the respondent and set aside the exparte decree in order to see that a judgment is rendered on the merits. The petitioner was also adequately compensated by awarding cost of Rs.2,500/-. The court below exercised its discretion in allowing the application to set aside the exparte decree. That discretion, normally, would not be interfered with in a Writ Petition under Article 227 of the Constitution of India. I do not think that there is sufficient ground for entertaining the Writ Petition. The Writ Petition is accordingly, dismissed. (K.T.SANKARAN) Judge ahz/