IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 5TH JANUARY 2011 / 15TH POUSHA 1932 OP(C).No. 1290 of 2010(O) AGAINST THE ORDER DATED 04/09/2010 IN IA 2621/2010 IN OS.NO.515 OF 2008 OF THE SUB COURT, PALAKKAD PETITIONER ------------------- PARAMESWARAN NAIR, S/O.GOVINDA PILLAI AGED 67 YEARS,LAKSHMI MANDIR, THEKKETHARA, MARUTHARODE VILLAGE, PALAKKAD TALUK PALAKKAD DISTRICT BY ADV. SRI.JACOB SEBASTIAN SRI.S.SANTHOSH KUMAR RESPONDENT: --------------- PARVAJA, W/O.SWAMINATHAN AGED 38 YEARS, OORAPADAM,KODUMBA VILLAGE (PO), PALAKKAD TALUK, PALAKKAD DISTRICT-678009 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ O.P.(C). NO. 1290 OF 2010 O ------------------------------------------------------ Dated this the 5th day of January, 2011 JUDGMENT O.S.No.515 of 2008, filed by the petitioner for specific performance of a contract, was decreed exparte by the Sub Court, Palakkad on 18.3.2010 as the counsel for the defendant reported no instructions and as the defendant was absent. The defendant filed I.A.No.1408 of 2010 to set aside the exparte decree. The court below allowed the application on condition that the defendant shall pay a sum of `3,000/- as costs on or before 7.8.2010. According to the petitioner, the defendant did not pay the costs within time. On 10.8.2010, the defendant filed I.A.No.2621 of 2010 for enlargement of time to deposit the costs before Court. In the affidavit accompanying the application, the defendant stated that though the amount of costs was offered to the counsel for the plaintiff within time, it was refused to be accepted by the counsel and therefore, the defendant was constrained to file the application for extension of time. The court below allowed the application by the order dated 4.9.2010, granting time to the defendant to pay the costs O.P.(C) NO.1290 OF 2010 :: 2 :: on or before 10.9.2010. That order is under challenge in this Original Petition. 2. Learned counsel for the petitioner submitted that the court below found in the order impugned that the reason stated by the defendant for her failure to pay the costs within time is not genuine. The counsel submits that the court below having found so, it was not proper to extend the time to pay the costs and the court below was not justified in exercising the discretion in favour of a party who stated an incorrect fact. It is also pointed out that the learned counsel appearing for the plaintiff in the lower court is a very senior counsel and if parties are allowed to put forward unfounded allegations as are made by the defendant in the present case, it would affect the reputation of the counsel as well. The counsel relied on the judgment of the Supreme Court in Pundlik J.Patil v. Executive Engineer (2009 (1) KLT SN 25 (C.No.26)SC). In Pundlik.J.Patil's case, the Supreme Court held that when an incorrect statement is made in the application seeking condonation of delay, that itself is a sufficient ground for rejecting the application without any further enquiry. In that case, the party concerned O.P.(C) NO.1290 OF 2010 :: 3 :: alleged that he had no knowledge of the award passed by the reference court in the Land Acquisition Reference. It was found to be false by the Court. In such circumstances, the Supreme Court held that the application for condonation of delay could be dismissed on the finding that false averments were made in the affidavit. 3. In the present case, no enquiry as such was made to find out whether the averments made in the affidavit are correct or not. Both the parties did not adduce any evidence. It is true that the court stated in the order impugned thus: “It appears that the reason stated by the petitioner for her failure to pay costs is not genuine.” This is not a concluded finding, but just an opinion. This statement was made in the order, probably finding it not proper to allow the defendant to make an allegation against a senior counsel. However, the court below thought it fit to exercise the discretion in favour of the defendant and in favour of granting extension of time. There being no concluded finding that the reason stated for extension of time is false and the court below having not found that a false affidavit was filed by the defendant, I do not think that the judgment of the Supreme Court in Pundlik J.Patil's case applies in the present case. O.P.(C) NO.1290 OF 2010 :: 4 :: By the impugned order, the court below granted extension of time to pay costs. The discretion was exercised in favour of the defendant. There is no ground to interfere with the discretion exercised by the court below. Therefore, I am of the view that the Original Petition (Civil) is liable to be dismissed. Accordingly, it is dismissed. (K.T.SANKARAN) Judge ahz/