IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 10TH OCTOBER 2011 / 18TH ASWINA 1933 OP(C).No. 2632 of 2011(O) ------------------------- OS.315/2005 of PRINCIPAL SUB COURT,KOLLAM .................... PETITIONERS: ------------ 1. AJAYAGHOSH @ AJAYAKUMAR MANALOOR VEEDU, JNAKKINAL CHERRY, OACHIRA VILLAGE, KOLLAM. 2. GOPALAN, MANALOOR VEEDU, JNAKKINAL CHERRY,OACHIRA VILLAGE,KOLLAM. BY ADV. SRI.B.KRISHNA MANI RESPONDENTS: ------------ 1. KARTHYAYANI D/O.KUNJUPENNU,KALLELIL VEEDU MADATHILKKARANMA MURY,OACHIRA VILLAGE, KOLLAM 690 526. 2. SUBASH CHANDRAN KALLELIL VEEDU,MADATHILKKARANMA MURY, OACHIRA VILLAGE, KOLLAM 690 526. NOW RESIDING AT POURNAMI, T.C 11/1104 THIRUVANANTHAPURAM 695 001. R1 BY ADV. SMT.G.VIDYA THIS O. P . (CIVIL) HAVING BEEN FINALLY HEARD ON 10/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JJJ OP(C).No. 2632 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE SUIT, O.S.NO:315/2005 BEFORE THE SUB COURT, KOLLAM P2: COPY OF THE WRITTEN STATEMENT DATED 30.10.06 IN O.S.NO:315/2005 BEFORE THE SUB COURT, KOLLAM P3: COPY OF THE WRITTEN STATEMENT DATED 6.2.09 IN O.S.NO:315/2005 BEFORE THE SUB COURT, KOLLAM P4: COPY OF THE I.A.1022/09 DATED 13.3.09 IN O.S.NO:315/2005 BEFORE THE SUB COURT, KOLLAM P5: COPY OF THE I.A.1394/09 DATED 2.4.09 IN O.S. NO:315/2005 BEFORE THE SUB COURT, KOLLAM P6: COPY OF THE ORDER DATED 30.6.2010 IN I.A.1022/09 IN O.S.NO:315/05 BEFORE THE SUB COURT, KOLLAM P7: COPY OF THE COMMON ORDER IN I.A. 1394/09 DATED 30.6.2010 IN O.S. NO:315/05 BEFORE THE SUB COURT, KOLLAM P8: COPY OF THE COMMON ORDER IN I.A.1395/09 DATED 30.6.2010 IN O.S.NO:315/05 BEFORE THE SUB COURT, KOLLAM P9: COPY OF THE ORDER DATED 20.8.2010 IN C.M.A. 83/2010 BEFORE THE DISTRICT COURT, KOLLAM P10: COPY OF THE JUDGMENT DATED 29.10.2010 O.P.(C)NO:499/2010 BEFORE THE HONOURABLE HIGH COURT OF KERALA P11: COPY OF THE COMMON JUDGMENT DATED 21.6.2011 IN C.M.A. NO:82/2010 AND C.M.A. 84/2010 RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A.TO JUDGE JJJ THOMAS P.JOSEPH, J. ==================================== O.P(C) No.2632 of 2011 ==================================== Dated this the 10th day of October, 2011 J U D G M E N T Respondents appear through counsel. 2. This Original Petition is in challenge of Ext.P6 to P8, orders in O.S. No.315 of 2005 of the court of learned Sub Judge, Kollam as confirmed by Exts.P9 and P11, judgments in C.M.A. Nos.82 and 84 of 2010 of the court of learned Second Additional District Judge, Kollam. Respondents filed the suit for fixation of boundary and other reliefs. Petitioners while resisting the suit came with a counter claim for recovery of possession and mandatory injunction. The suit and counter claim were posted in the list on 07.02.2009. On account of absence of petitioners and counsel, learned Sub Judge granted ex parte decree in favour of respondents and dismissed the counter claim. Petitioners filed I.A. No.1022 of 2009 to set aside the ex parte decree and I.A. No.1395 of 2009 for restoration of the counter claim with I.A. No.1394 of 2009 to condone the delay of 19 days in filling the said application. Those applications were dismissed by the learned Sub Judge as per Exts.P6 to P8, orders holding that there is no O.P(C) No.2632 of 2011 -: 2 :- sufficient explanation for the delay in filing I.A. No.1395 of 2009 and the absence of petitioners and counsel in court on 07.02.2009. Those orders are confirmed by the learned Additional District Judge as per Exts.P9 and P11, judgments. 3. Learned counsel submitted that it is because the advocate clerk noted the posting date as 07.03.2009 instead of 07.02.2009 that petitioners and counsel happened to be absent in the court on that day. It is also submitted that dispute concerns right over immovable property and that ought to have been decided on merit and not on technicalities. 4. Learned counsel for respondents contended that petitioners are dragging the proceeding, they remained ex parte once and later that ex parte order was set aside and they were permitted to contest the suit. It is submitted that there is no reason to interfere with the orders/judgments under challenge. 5. Indisputably the dispute concerns right over immovable property. In the suit for fixation of boundary title is also involved, not to say about the counter claim made by the petitioners. I.A. No.1022 of 2009 to set aside the ex parte decree was filed within time while in filing I.A. No.1395 of 2009 for restoration of the counter claim, the delay involved is only 19 O.P(C) No.2632 of 2011 -: 3 :- days. 6. It is true that litigants should not have the impression that every laches on their part will be condoned by the superior court. At the same time I must also bear in mind the wholesome principle that the right of a party to be heard shall not be negatived unless there is gross negligence or gross carelessness on his party. The attempt of the court must be to decide the dispute on merit and not on technicalities. Here as I stated that the delay involved in filing the application for restoration of the counter is only 19 days while in requesting to set aside the ex parte decree, there is no delay at all meaning thereby that the said application was filed within time. Possibility of the advocate clerk mistakenly noting the date of posting cannot be ruled out. I am satisfied that there is sufficient cause shown by petitioners for their absence in court on 07.02.2009. But I.A. No.1395 of 2009 is filed after 19 days. Even when petitioners have sufficient explanation for the delay the court has the discretionary power to condone the delay. Having regard to the facts and circumstances I am inclined to condone the delay and allow the applications on terms of costs which having regard to the facts and circumstances of the case is fixed as Rs.3,000/-. O.P(C) No.2632 of 2011 -: 4 :- This Original Petition is allowed as follows: (a) Exhibits P6 to P8, orders and Exts.P9 and P11, judgments are set aside and I.A No.1022, 1394 of and 1395 of 2009 will stand allowed on condition that petitioners pay to the respondents through counsel in this Court/deposit in this Court for such payment Rs.3,000/- (Rupees Three thousand only) within three weeks from this day. (b) On costs being paid/deposited as aforesaid, the applications as stated in clause (a) above will stand allowed, ex parte decree in O.S. No.315 of 2005 and the dismissal of counter claim set aside and the matter restored. (c) On the ex parte decree being set aside and counter claim restored as above stated, trial court shall expedite disposal of the suit and counter claim after giving both sides opportunity O.P(C) No.2632 of 2011 -: 5 :- to adduce evidence. In case condition (a) referred above is not complied, this Original Petition will stand dismissed in confirmation of Exts.P6 to P8, orders and Exts.P9 and P11, judgments. THOMAS P. JOSEPH, JUDGE. vsv