IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 5TH APRIL 2010 / 15TH CHAITHRA 1932 WP(C).No. 37844 of 2009(O) --------------------------------------- (OS.NO.492/2002 OF II ADDL.SUB COURT,THIRUVANANTHAPURAM) .................... PETITIONER: ------------------- MRS. GEETHAKUMARI.N.K, HOUSE NO. 29, MLRA, KUMARAPURAM, MEDICAL COLLEGE.P.O, THIRUVANANTHAPURAM. BY ADV. MR.JOHN K.GEORGE. RESPONDENT: ---------------------- SRI. R. JEEVAN, T.C NO. 27/750, SIVODAYAM, VANCHIYOOR, THIRUVANANTHAPURAM. BY ADV. MR. M.R.ANANDAKUTTAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/04/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.37844/2009-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE MEMO SUBMITTED BY ADV. SUSHA SUBIL (SISTER OF THE RESPONDENT'S BROTHER WIFE) DTD. 15/10/2003. EXT.P.1.A: COPY OF THE LETTER SUBMITTED BY JEEVAN TO ADV. SUSHA SUBIL. EXT.P.2: COPY OF THE DECREE & JUDGMENT DTD. 31/01/2004. EXT.P.3: COPY OF THE PETITION WITH ACCOMPANYING AFFIDAVIT. EXT.P.4: COPY OF THE PETITION I.A. NO. 4257/2004 FOR CONDONATION OF DELAY AND AFFIDAVIT. EXT.P.5: COPY OF THE ORDER IN I.A. NO. 4257/2004 OF THE IIND ADDL. SUB COURT, THIRUVANANTHAPURAM. EXT.P.6: COPY OF THE ORDER IN I.A. NO. 3304/2004 DTD. 19/08/2006 OF THE IIND ADDL. SUB COURT, THIRUVANANTHAPURAM. EXT.P.7: COPY OF THE JUDGMENT IN W.P.(C).NO.1648/2007 BEFORE THE HON'BLE COURT DTD. 07/08/2008. EXT.P.8: COPY OF THE JUDGMENT IN W.P.(C).NO.25430/2007 OF THIS HON'BLE COURT. EXT.P.9: COPY OF THE ORDER DTD. 27/07/2009. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. P.BHAVADASAN, J. ------------------------------------- WP(C) No.37844 of 2009 ------------------------------------- Dated 5th April 2010 Judgment In this Writ Petition filed under Article 227 of the Constitution of India, the petitioner assails Ext.P9 order by which the applications filed by the petitioner for setting aside the ex parte decree and for condonation of delay were dismissed by the Court below. 2. The facts absolutely necessary for the disposal of this Petition are as follows : The petitioner herein instituted OS No.492/02 before the Second Additional Sub Court, Thiruvananthapuram, which was a suit for specific performance of an agreement for sale in respect of 5.690 cents of land. Initially, the summons to the respondent was served by affixture on his house. Finding that the summons was not properly served on the respondent, the petitioner was WPC 37844/09 2 directed to take out the summons in the correct address of the respondent. Accordingly, the summons was issued in the present address of the respondent. 3. The learned counsel for the petitioner would point out that as per Exts.P1 and P1(a) the respondent entered appearance through counsel. Thereafter, the case was adjourned to 17.11.2003 on which date, the defendant was not present. On 31.1.2004, an ex parte decree was passed, a copy of which is produced as Ext.P2. 4. In terms of the decree, the petitioner had to deposit an amount of Rs.4 lakhs as balance consideration which she remitted on 30.07.2004. While so, the respondent filed IA No.3304/04 for setting aside the ex parte decree and IA No.4257/04 for condonation of delay in filing IA No.3304/04. Both the IAS were allowed by the Court below as per Exts.P5 and P6 orders. The petitioner challenged the said orders before this Court by filing WP(C) No.1648/07 and WPC 37844/09 3 this Court quashed Exts.P5 and P6 orders and directed the Court below to consider the matter afresh, by Ext.P7 Judgment. 5. The respondent had secured a housing loan on mortgaging the property agreed for sale to the petitioner and committed default. The Bank initiated steps under the Securitization Act and since the respondent did not respond to the notice issued by the Bank, the property was brought to sale. The petitioner filed WP(C) No.25430/07 before this Court challenging the proceedings initiated by the Bank for sale of the property. This Court, by Ext.P8 Judgment, stayed the auction on condition of payment of Rs.3 lakhs within three weeks and the balance in five equal instalments. The petitioner claims that she has remitted an amount of Rs.4,78,190/- as per the direction of this Court and she was put in possession of the building and the land. 6. In obedience to the directions in Ext.P7 WPC 37844/09 4 Judgment of this Court, the Court below reconsidered Exts.P3 and P4 applications. The respondent was examined as PW1 and and marked his passport as Ext.A1. He was cross examined by the counsel for the petitioner. Though the respondent had cited the counsel who filed appearance memo as his witness, she was not examined. The Court below allowed both the petitions by Ext.P9 order dated 27.07.2009. 7. The learned counsel for the petitioner submits that the Court below was not justified in allowing the applications. The learned counsel for the petitioner submitted that the respondent had notice of the pendency of the suit against him. It is also pointed out that though the respondent had cited the counsel who filed appearance memo as his witness, she was not examined on behalf of the respondent. It is also pointed out that pursuant to the decree, the petitioner had deposited an amount of Rs.4 lakhs before the Court below and in addition to that, she had also paid an WPC 37844/09 5 amount of Rs.4,78,190//- to avoid the proceedings under the Securitisation Act. 8. It is true that the respondent herein was set ex parte and an ex parte decree was passed. On earlier occasions, when applications were moved for setting aside the ex parte decree and for condonation of delay, they were allowed by the Court below. This Court found the said order to be a cryptic order and therefore, set aside the order and directed the Court below to reconsider the matter afresh in the light of the available materials before it. The petitioner was examined as PW1 before the Court below and Ext.A1 was marked. 9. The Court below seems to have considered the entire matter and it could not be said that the view taken by the Court below is not a plausible view. The Court below after evaluation of the materials before it, has chosen to exercise its discretion in a particular manner. Unless it is shown that the said discretion is perverse or illegal, no WPC 37844/09 6 interference by this Court under the supervisory jurisdiction is warranted. It could also not be said that any irreparable injury has been caused to the petitioner by the impugned order. 10. The petitioner prays that she may be permitted to withdraw the amounts deposited by her. The said prayer seems to be only just and proper. Accordingly, the petitioner is permitted to withdraw the amount of Rs.4,00,000/- deposited before the Court below. The respondent shall pay the amount of Rs.4,78,190/- said to be paid by the petitioner to the Bank within two months from today. Subject to the above conditions, the order of the Court below is sustained. The parties shall appear before the Court below on 15.06.2010 and the Court below shall endeavour to dispose of the matter within two months thereafter. P.BHAVADASAN, JUDGE sta WPC 37844/09 7 WPC 37844/09 8