IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 2ND JUNE 2010 / 12TH JYAISTHA 1932 WP(C).No. 6282 of 2010(O) ------------------------- CMA.20/2009 of ADDL. DISTRICT COURT, N. PARAVUR OS.56/2006 of MUNSIFF COURT, N. PARAVUR (IA 9/2008) .................... PETITIONER: --------------- SREELATHA RAJEEV, W/O. RAJIV KUMAR, SREENILAYAM, MANNAM KARA, PARAVUR VILLAGE, PARAVUR TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.BOBBY JOHN RESPONDENT: --------------- JOHNSON, S/O. E.C. JOHN, ERALIL VEEDU, PARAVOOTHARA MURI, PARAVUR VILLAGE, PARAVUR TALUK, ERNAKUALAM DISTRICT. ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE FOR R1 SRI.P.B.KRISHNAN FOR R1 SRI.P.M.NEELAKANDAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.C.No.6282 OF 2010 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : PLAINT IN O.S.No.56 OF 2006 BEFORE the MUNSIFF COURT, N. PARAVUR EXHIBIT P2 : WRITTEN STATEMENT IN O.S.No.56 OF 2006 BEFORE the MUNSIFF COURT, N. PARAVUR EXHIBIT P3 : MEDICAL CERTIFICATE DTD.11-07-2008 EVIDENCING THAT THE PETITIONER/DEFENDANT WAS SUFFERING FROM ILLNESS DURING THE RELEVANT TIME EXHIBIT P4 : ORDER IN I.A.NO.9 OF 2008 IN O.S.No.56 OF 2006 PASSED BY the MUNSIFF COURT, N. PARAVUR EXHIBIT P5 : C.M.A.NO.20 OF 2009 FILED BY THE PETITIONER BEFORE the ADDL. DISTRICT COURT, N PARAVUR EXHIBIT P6 : ORDER DTD.10-12-09 IN C.M.A.NO.20 OF 2009 PASSED BY THE ADDL. DISTRICT COURT, N. PARAVUR RESPONDENT'S EXHIBITS : NIL THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No. 6282 of 2010 --------------------------------------- Dated this 02nd day of June, 2010 JUDGMENT Writ petition arises from judgment of learned Additional District Judge, North Paravur in C.M.A.No20 of 2009 confirming dismissal of I.A.No.9 of 2008 for non compliance with the direction for payment of cost as condition to set aside the ex parte decree passed on 04-11-2007. Learned Munsiff while disposing of I.A.No.9 of 2008 directed payment of cost of Rs.1,000/- on or before 03-04- 2009 as condition for setting aside the ex parte decree. The cost was neither paid nor was any request made to extend the time. Hence the application ended in dismissal as per order dated 04-04- 2009. That order was challenged in C.M.A.No.20 of 2009. Learned Additional District Judge confirmed dismissal of the application. Learned counsel for petitioner contends that he was ready to pay the cost during pendancy of C.M.Appeal but learned Additional District Judge observed that in spite of giving sufficient time by the learned Munsiff, petitioner has not complied with the condition and hence he is not entitled to get the ex parte decree set aside. Learned counsel for respondent would contend that ex parte decree was passed on 04-11-2007 for payment to arrears of higher charges W.P.C.No.6282 of 2010 : 2 : and damages and that for no fault of respondent the decree could not be executed till now. 2. It is not as if the learned Munsiff declined to set aside the ex parte decree. Learned Munsiff as per order dated 25-03- 2009 allowed the application on condition of payment of cost of Rs.1,000/- on or before 03-04-2009. Only nine (9) days time was given for payment of cost. Admittedly, cost was not paid and hence learned Munsiff was justified in dismissing the application but learned Additional District Judge while disposing of C.M.A.No.20 of 2009 could have granted some time for petitioner to deposit the cost and thereby get the ex parte decree set aside rather than dismissing the appeal. Learned counsel for petitioner states that he is prepared to pay the cost within one week from this day. Having regard to the circumstances I am inclined to think particularly as learned Munsiff also was inclined to give an opportunity that this is a fit case to give petitioner an opportunity to contest the case. I am inclined to accept the request . Resultantly the writ petition is allowed on condition that petitioner paid to the respondent through counsel the sum of Rs.1,000/- (Rupees One Thousand Only) by way of cost within a week from this day. In case of failure the revision petition will W.P.C.No.6282 of 2010 : 3 : stand dismissed in confirmation of the judgment of learned Additional District Judge. Call on 09-06-2010. (THOMAS P JOSEPH, JUDGE) Sbna/-