IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 5TH FEBRUARY 2008 / 16TH MAGHA 1929 WP(C).No. 4094 of 2008(K) ------------------------------------- OS.265/2003 OF MUNSIFF COURT, PUNALUR .................... PETITIONER: ------------------- MINIMOLE, W/O. VARGHESE, VAZHAVILA MELETHIL, AYOOR MURI, EDAMULACKAL VILLAGE, PATHANAPURAM TALUK, PRESENTLY RESIDING AT ANAKILLATHU PUTHENVEEDU, PUNNALA P.O.CHACHIPUNNA, PATHANAPURAM. BY ADV. SRI.MOHAN JACOB GEORGE, SMT.P.V.PARVATHI, SMT.REENA THOMAS, SRI.L.RAM MOHAN. RESPONDENTS: ----------------------- 1. LUKOSE JACOB, CHARUVILA PUTHEN VEEDU, NEERAICODU, AYOORMURI, EDAMULACKAL VILLAGE, PATHANAPURAM TALUK. 2. PHILIPOSE VARGHESE, VAZHAVILA, MELETHIL, AYOOR MURI, EDAMALACKAL VILLAGE, PATHANAPURAM TALUK. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/02/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J ===================== W.P.(C) No.4094 OF 2008 ===================== Dated this the 5th day of February 2008 JUDGMENT This writ petition is preferred against the order of the Munsiff's Court, Punalur in I.A.Nos.1022/04, 1023/04 & I.A.No.1748/2007 in O.S.No.265 of 2003. The first defendant in the suit is the petitioner. A suit was filed for realisation of the amount and it was decreed ex parte. Defendants moved an application for setting aside the ex parte decree with a petition to condone the delay. The court below dismissed those applications. Earlier this matter was taken up before this Court and this Court held that service of notice by affixture is also a mode of service envisaged by Order 5 Rule 20 C.P.C. Then the review application was allowed and the court dismissed all those applications. The court referred to Exts.C1 to C3 and held that the defendants in the suit had refused to receive notice and therefore affixture has been effected and so it is a valid service and therefore declined to set aside the ex parte decree nor to condone the delay. In a case of this nature, it is absolutely necessary to have evidence to appreciate the matter. Unfortunately neither the plaintiff nor the WP(C) 4094/2008 -:2:- defendants had mounted the box to give evidence in support of their objections and averments. The question of affixture arises when there is a refusal and suppose one is able to establish that refusal is not there, then affixture may not be proper. So these matters require detailed consideration. Learned counsel for the petitioner submits that his party is inclined to adduce evidence in support of the contentions raised. Since the matter has been shuttling between the lower court and the High Court on various occasions, I hope and feel that ultimately the parties will prosecute the matter diligently by adducing evidence and the court can certainly come to a conclusion on appreciation of evidence. Therefore, I set aside the order passed by the court below, restore the petition for setting aside ex parte decree and delay condonation application and direct the court below to permit the defendants to adduce evidence in support of their respective contentions and if the plaintiff wants to adduce rebuttal evidence to do the same and dispose of the matter in accordance with law. Since I am disposing of the matter at the admission stage itself, the court shall fix a date for appearance of the plaintiff and then try to proceed with the matter and dispose it of in accordance with law. The WP(C) 4094/2008 -:3:- petitioner is directed to appear before the court below on 3.3.2008. Writ petition is disposed of as above. M.N.KRISHNAN, JUDGE Cdp/-