IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 4TH OCTOBER 2010 / 12TH ASWINA 1932 WP(C).No. 35362 of 2009(O) ---------------------------------------- PETITIONER(S): ------------------------- REMESH RAMAN PILLAI, S/O.P.G.RAMAN PILLAI 301 KAILASH DHAM, KASHIMIRA, MIRA BHAYANDAR ROAD, THANA DISTRICT, MAHARASHTRA STATE, REP. BY POWER OF ATTORNEY HOLDER, SAROJA DEVI, AGED 65 YEARS, D/O.KUNJULAKSHMI AMMA, BINDU BHAVAN, CHOOTTAYIL KILIMANOOR P.O., KILIMANOOR VILLAGE, CHIRAYINAKIL TALUK, TVM DISTRICT BY ADV. SRI.M.DINESH RESPONDENT(S): -------------------------- 1. SREEKUMARI, AGED 56 YEARS, W/O.KPR THAMPY, 123 F AMRITAYA VATHAT LANE, EROOR (N), VIA TRIPUNITHURA, ERNAKULAM PO 2. GANESH RAMAN PILLAI, AGED 51 YEARS, S/O.P.G.RAMAN PILLAI, 403, SONARA SANGEET, CO-OPERATIVE HOUSING SOCIETY, 'C' NEW BUILDING, PHASE NO.1, GOLDEN NEST, MIRA - BHAYANDAR (EAST) THANA DISTRICT, MAHARASHTRA STATE. 3. JAGEDIS RAMAN PILLAI, AGED 49 YEARS, S/O.RAMAN PILLAI, 704 'A' WING 49, HIMALAYA COMPLEX, MIRA - BHAYANDAR (EAST) THANA DISTRICT, MAHARASHTRA STATE. R1 BY ADV. SRI.M.K.SATHEESA VARMA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.35362/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PLAINT IN OS. 918/08 ON THE FILE OF PRINCIPAL SUB COURT, KOLLAM. P2:- COPY OF THE POWER OF ATTORNEY. P3:- COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER'S HOLDER. P4:- COPY OF THE IA.NO.3932/09 FILED BY THE POWER OF ATTORNEY HOLDER. P5:- COPY OF THE IA. 3953/09 FILED BY THE POWER OF ATTORNEY HOLDER. P6:- COPY OF THE ORDER IN IA. 3933/09. TRUE COPY P.A. TO JUDGE tss HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.35362 Of 2009 ---------------------- Dated this the 4th day of October, 2010. J U D G M E N T Petitioner is the defendant in O.S.No.918 of 2008 on the file of the Principal Sub Court, Kollam. Suit was filed by the respondents for partition. Suit was posted on 19.6.2009 for appearance of the defendant. The petitioner is the sole defendant in the suit. He entered appearance and prayed for time to file written statement. Case was adjourned to 15.9.2009 with a direction that no further time for filing written statement will be granted. On 15.9.2009 the defendant’s counsel submitted that the written statement is being filed. The court adjourned the case to 23.11.2009. The petitioner filed the written statement on 17.11.2009. I.A.No.3933 of 2009 is filed to accept the written statement and for enlarging the time for filing written statement. Ext.P3 is the written statement and Ext.P5 is the petition for enlargement of time. The matter was taken up on 23.11.2009. On that day the court passed Ext.P6 order. The court observed that on 15.9.2009 the defendant’s counsel submitted that the written statement is being filed and therefore the case was W.P.(C).No.35362 Of 2009 ::2:: posted for framing issues to 23.11.2009. The court further observed that it is curious to note that written statement along with a petition was filed on 17.11.2009. The court did not accept the written statement nor enlarged the time for filing the written statement. 2. The dismissal of Ext.P5 petition, no doubt, will cause serious hardship to the petitioner. The petitioner is precluded from defending the suit effectively. The respondents filed the suit for partition. The petitioner is working at Maharashtra. He appeared through his power of attorney holder on 19.6.2009. It is true that the written statement was not filed on 15.9.2009 but, the same was filed on 17.11.2009. There is a delay of about one month in filing the written statement. Ext.P5 was filed for enlarging the time for filing written statement. The court should have considered Ext.P5 petition more liberally. In stead the court refused to accept the reasons stated in Ext.P5 and dismissed the petition. Whatever be the reason for not filing the written statement in time, I feel that, in the interest of justice, the petitioner shall be given an opportunity to contest the case on W.P.(C).No.35362 Of 2009 ::3:: merits. The court below could have accepted the reasons and should have proceeded the matter on merits. I do not find any justification in not allowing Ext.P5 I.A. Therefore Ext.P5 I.A is allowed. Ext.P6 order is set aside and further directs the court below to proceed with the case in accordance with law. Writ petition is disposed of as above. HARUN-UL-RASHID, Judge. bkn/-