IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 12TH OCTOBER 2010 / 20TH ASWINA 1932 WP(C).No. 26785 of 2010(O) ------------------ AGAINST THE ORDER IN EP.498/2009 IN OS.213/2003 of SUB COURT,ERNAKULAM .................... PETITIONER(S): --------------- P.BHASKARAN, AGED 86 YEARS, BUILDING NO.38/437, SIDE HOTEL, PROVIDENCE ROAD, FROM KALEECKAL HOUSE, PALLICKAL P.O., KAYAMKULAM REPRESENTED BY HIS POWER OF ATTORNEY HOLDER K.B.MOHANAN PILLAI, KARUKAPPALLIL HOUSE, ELAMAKKARA, KOCHIN 31. BY ADV. SRI.R.KRISHNA RAJ RESPONDENT(S): --------------- ST.MARY'S CATHEDRAL BASILICA, ERNAKULAM, KOCHI-31, REPRESENTED BY ITS VICAR REV.DR.JOSE CHIRAMEL, S/O.FRANCIS, RESIDING AT PRESBITORY OF ST.MARY'S BASILICAL CHURCH, ERNAKULAM, KOCHIN 31. ADV. SRI.JIMMY JOHN VELLANIKARAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.26785 of 2010 -------------------------------------- Dated this the 12th day of October, 2010. JUDGMENT Petitioner is the defendant in O.S.No.213 of 2003 of the court of learned Sub Judge, Ernakulam. That is a suit filed by respondent for recovery of possession of the shop room with rent arrears. It is stated that petitioner appeared in the suit but did not file a written statement and hence an exparte decree was passed in favour of the respondent on 04.01.2006. It happened that the decree only provided for recovery of rent arrears and there was no mention about the prayer for recovery of possession of the shop room. Respondent filed I.A.No.7567 of 2007 for amendment of the judgment and decree to incorporate a relief of recovery of possession as well. That application was allowed as per order dated 15.10.2008 which is under challenge in this petition under Article 227 of the Constitution. Initially, petitioner produced certified copy of I.A.No.7567 of 2007 and an order on its docket sheet purporting to have been passed by the learned Sub Judge which is in the following lines: “Allowed” . It was contended that there was no speaking order passed by the learned Sub Judge. That contention was contested by learned counsel for respondent who asserted that what is recorded in the docket sheet of the application is only what the court officer has recorded following the order passed by the learned Sub Judge. Thereon, petitioner has produced certified copy of the order dated 15.10.2008 which states that learned Sub Judge after perusing the records was satisfied WP(C) No.26785/2010 2 that there was an inadvertent omission in not incorporating the relief to surrender vacant possession of the scheduled building in the judgment and decree and accordingly the application is allowed. 2. Learned counsel for petitioner states that challenging the amended judgment and decree petitioner has preferred an appeal in the court of learned District Judge, Ernakulam. Hence without prejudice to the right of petitioner to challenge the amended judgment and decree in that appeal petitioner may be permitted to withdraw this Writ Petition. 3. I have heard learned counsel for respondent also. 4. Having regard to the circumstances stated I am inclined to allow the request. Resultantly this petition is dismissed as withdrawn without prejudice to the right if any of petitioner to challenge the amended judgment and decree in the appeal said to be preferred against the same. I.A.No.14205 of 2010 will stand closed. THOMAS P.JOSEPH, Judge. cks WP(C) No.26785/2010 3