IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 13TH JANUARY 2010 / 23TH POUSHA 1931 WP(C).No. 9814 of 2009(O) ------------------------- AGAINST THE ORDER IN IA 688/08 IN OS.102/2006 of MUNSIFF COURT, ETTUMANOOR .................... PETITIONER(S): --------------- SABU EMMANUAL, PAZHAYADATHU HOUSE, ARPPOOKKARA, KOTTAYAM. BY ADV. SRI.UNNIKRISHNAN.V.ALAPATT RESPONDENT(S): --------------- 1. THRESYAMMA JOSEPH, CHEKKONTHARA HOUSE, ARPPOOKKARA KARA, VILLOONNI.P.O., KOTTAYAM. 2. ANNAMMA JOSEPH OF DO. DO. 3. BIJU.P.L. OF DO.DO. 4. C.J.THOMAS OF DO.DO. ADV. SRI.B.RAMACHANDRAN FOR R1 TO R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.9814/09 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE JUDGMENT IN O.S.NO.102 OF 2006 OF MUNSIFF COURT, ETTUMANOOR. EXT.P2: COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE MUNSIFF COURT, ETTUMANOOR IN I.A.NO.688/08 IN O.S.NO.102/06. EXT.P3: COPY OF THE ORDER PASSED BY THE MUNSIFF COURT, ETTUMANOOR IN I.A.NO.688/08 IN O.S.NO.102/06 DATED 3.11.2008. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.9814 OF 2009 () ----------------------------------- Dated this the 13th day of January, 2010 J U D G M E N T Petitioner is the defendant in O.S.No.102 of 2006 on the file of the Munsiff Court, Ettumanoor. Suit was one for damages and for injunction, and the respondents are the plaintiffs. Suit claim was resisted by the petitioner/defendant filing a written statement, in which, he also set up a counter claim against the plaintiffs seeking a decree for a sum of Rs.40,000/- towards the amount due to him in the execution of a contract work to construct a building. The respondents/plaintiffs entered into an agreement with the defendant and on account of breach of contract committed by him, the plaintiffs sustained loss was the gist of their case for the reliefs claimed in the suit. Imputing default on the part of the respondents/plaintiffs, the petitioner/defendant has raised his counter claim. Since the defendant did not pay the court fee on the counter claim raised in his written statement within WPC.9814/09 2 time and on his default to appear before the court, he was declared ex parte, and later an ex parte decree was passed in favour of the respondents/plaintiffs. An application was moved by the petitioner/defendant to set aside the ex parte decree with a petition to condone delay of 336 days. It appears that the petition moved to condone delay was alone numbered and the other application for setting aside the ex parte decree remained unnumbered. After conducting an enquiry over the petition moved to condone delay, in which, the petitioner was examined and documentary evidence tendered, the learned Munsiff dismissed that petition, not being satisfied with the cause shown. Propriety and correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. Normally, an order passed by the subordinate court with respect to dismissal of an application to condone delay in a proceedings under Order IX Rule 13 of the Code of Civil Procedure is not amenable to a challenge by way of a writ WPC.9814/09 3 petition. However, in the given facts of the case, where the court below has kept the application for setting aside the ex parte decree unnumbered, but proceeded with the enquiry on the delay petition alone, this Court has admitted the writ petition and taken it on its file. The better course which could have been followed by the court was consideration of the delay petition and also the application to set aside the ex parte decree, both of them together, and of disposing them by a common order. In that event, the petitioner could have challenged that order by way of an appeal as provided under Order XLIII Rule 1 (d) of the CPC. Since the delay petition alone was disposed of after enquiry, keeping the petition for setting aside the ex parte decree as unnumbered, the petitioner was prevented from filing an appeal under the above rule as provided by the statute. Whatever that be, after perusing Ext.P3 order passed by the court below with reference to other exhibits tendered and taking note of the submissions made by the counsel, I find some indulgence can be shown to the petitioner to have a decision on merits subject to compensating the injury likely to be suffered by the WPC.9814/09 4 opposite party, the respondents in the present writ petition. No counter evidence was let in by the respondents/plaintiffs other than disputing the cause shown by the petitioner for the delay in moving the application for setting side the ex parte decree. The defendant has entered appearance through counsel in the execution proceedings during the period which was sought to be condoned mainly weighed with the court in forming a conclusion that he had not shown sufficient cause for condoning the delay. His sworn testimony that on account of allergic infection, he was under continuous medical treatment, which was supported by the medical certificate tendered should have received due consideration from the court especially where there was no counter evidence let in by the opposite party to impeach the case so canvassed by him. Considering the above aspects, I find the petition for condoning the delay filed by him to set aside the ex parte has to be allowed subject to payment of cost of Rs.5,000/- (Rupees five thousand only) to the opposite party, the respondents/plaintiffs in the suit. Cost ordered shall be deposited before the court below within one month from the WPC.9814/09 5 date of this judgment. If cost as ordered above is deposited, the court below shall number the petition moved for ex parte decree and dispose it of by setting aside the ex parte decree passed against the petitioner to have a decision in the suit on merits. If the cost is not deposited by the petitioner within the time fixed by this Court, Ext.P3 order challenged in the writ petition shall remained undisturbed. It is further made clear that in the event an ex parte decree being set aside and trial proceeded, the counter claim raised by the petitioner shall not be reopened and it shall stand rejected. Subject to the above observations, the writ petition is disposed. Handover a copy of the judgment to the counsel for the petitioner on usual terms and send a copy of the judgment to the court concerned forthwith. S.S.SATHEESACHANDRAN JUDGE prp