IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 22ND OCTOBER 2008 / 30TH ASWINA 1930 WP(C).No. 31116 of 2008(D) ------------------------------------ OS.228/1996 of MUN-MAGI COURT, PARAVOOR .................... PETITIONERS : ----------------- 1. THANKAPPAN, PATTARAZHIKATHU VEEDU, CHATHANNOOR THAZHATHU CHERRY, MEENADU VILLAGE, CHATHANNOOR. 2. SAROJAM, W/O.THANKAPPAN, OF DO BY ADV. SRI.ALEX N.MATHEW (KOLLAM) SRI.H.RAMANAN SRI.JAMES JOSE RESPONDENTS : ------------------- 1. SUJATH SHA, S/O.ABDUL REHMAN, NOUSHAD MANZIL, NEAR KIZHAKKUMKARA, MEENAD VILLAGE, KOLLAM, REP. BY POWER OF ATTORNEY ARAVINDAN, ARAVINDA BHAVAN, NEAR KOCHALUM MOODU, MADAVOOR VILLAGE, THIRUVANANTHAPURAM. 2. HAVVA BEEVI, NOUSHAD MANZIL, NEAR KIZHAKKUMKARA, MEENAD VILLAGE, KOLLAM. 3. STATE OF KERALA REP. BY DISTRICT COLLECTOR, KOLLAM. 4. ASST. DIRECTOR OF RE-SURVEY, OFFICE OF THE RE-SURVEY, KOLLAM. WP(C).No. 31116 of 2008(D) 5. SUPERINTENDENT OF SURVEY AND RECORDS, OFFICE OF THE SUPERINTENDENT OF SURVEY AND RECORDS, KOLLAM 6. NOUSHAD, S/O.ABDUL REHMAN, NOUSHAD MANZIL, NEAR KIZHAKKUMKARA, MEENAD VILLAGE, KOLLAM. 7. AMARSHAD, OF DO. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. ------------------------------ W.P(c) No. 31116 of 2008 ------------------------------ Dated this the 22nd day of October, 2008 JUDGMENT Heard. 2. Writ Petitioner is the plaintiff in O.S. No.228 of 1996 of the Court of Munsiff-Magistrate, South Paravur (Kollam District). That suit was for declaration of title and other reliefs. Respondents/defendants were set ex parte and an ex parte decree and judgment followed in favour of the Petitioner/plaintiff on 31/08/2007. First respondent/Additional 9th defendant filed I.A. No.1287 of 2007 to set aside the exparte decree (application dated 20/08/2007) and I.A.No.1286 of 2007 to condone the delay (15 days). The applications were filed through her Power of Attorney Holder. Learned Munsiff-Magistrate allowed I.A. No.1286 of 2007 as per Exhibit P6 order and condoned the delay. Petitioner /plaintiff is aggrieved and has come to this court for invoking the power under Article 227of the Constitution. 3. Learned counsel submits that though the first respondent/Additional 9th defendant had entered appearance personally, I.A. Nos 1286 of 2007 and 1287 of 2007are field though her Power of Attorney Holder, but no written authority is obtained from the court and W.P.(C) No.31116 /2008 2 therefore those applications ought to have been dismissed. Learned counsel referred to me Rule 22(2) of Civil Rules of Practice. 4. Rule 22(2) of Civil Rules of Practice has no application to the facts of the case since that provision refers to appearance of parties in court through recognised agents. It was so held in Varkey Vs. Nenshi Devshi Kathawala Ltd. [1963 K.L.T 463]. That I.A. Nos.1286 of 2007 and 1287 of 2007 are signed on behalf of the first respondent by his Power of Attorney Holder does not amount to appearance in court in the way understood in Rule 22(2) of the Civil Rules of Practice. Hence, that provision cannot apply. The order under challenge states that the Power of Attorney has already been produced in the court. 5. Next contention is that the application ( I.A. No.1287 of 2007) is not to set aside the ex parte 'decree' but to set aside the exparte 'order'. Though, there appears to be some mistake on the dates mentioned in the affidavit in support of I.A. No.1287 of 2007, on reading that application it can be seen that the prayer is to set aside the exparte decree. This is a mater of course which the court below can consider while considering the request as per I.A. No. 1287of 2007. 6. Further contention is that the delay in filing I.A. No.1287 of W.P.(C) No.31116 /2008 3 2007 is not properly explained. Delay involved is only 15 days. It is stated in para 5 of the affidavit in support of I.A. No.1286 of 2007 that the Power of Attorney Holder was laid up due to hepatitis from 20/08/2007 to 24/09/2007. The Court below found that the delay is properly explained. I do not find any gross negligence or willful latches on the part of first respondent in not filing the application in time. This court is also not required while exercising power under Article 227 of the Constitution to interfere with the discretion exercised by learned Munsiff Magistrate. There is no merit in this petition. The writ Petition is therefore, dismissed. THOMAS P. JOSEPH, JUDGE scm