IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 11TH OCTOBER 2010 / 19TH ASWINA 1932 WP(C).No. 22354 of 2010(O) -------------------------- AGAINST THE ORDER IN EP 455/2009 IN OS.769/2008 of PRINCIPAL SUB COURT,KOLLAM .................... PETITIONER: --------------- SASIDHARAN, S/O.SANKUNNI, RESMI NIVAS, KOONAYIL CHERRY, PARAVUR VILLAGE, KOLLAM. BY ADV. SMT.P.V.KOCHUTHRESIA RESPONDENT: --------------- GOPALAKRISHNAN, S/O.KARUNAKARAN, USHUS, KURUMANDAL CHERRY, NEDUNGOLAM.P.O., KOLLAM, PIN-691 334. ADV. SRI.P.SIVARAJ FOR R SRI.I.P.VARGHESE FOR R THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 22354 of 2010 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : ATTACHMENT ORDER IN O.S.769/08 ON the FILE OF PRINCIPAL SUB COURT, KOLLAM EXHIBIT P2 : I.A.NO.2325/09 IN SAID SUIT EXHIBIT P3 : I.A.NO.149/10 IN the SAID SUIT EXHIBIT P4 : I.A.NO.150/10 IN THE SAID SUIT EXHIBIT P5 : ORDER ON I.A.NO.149/10 DTD 15.01.10 EXHIBIT P6 : ORDER ON I.A.NO.150/10 DTD 15.01.10 EXHIBIT P7 : R.37 NOTICE IN E.P. IN THE SAID SUIT RESPONDENT'S EXHIBITS: NIL True Copy P.A to Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P(C).No.22354 of 2010 --------------------------------------- Dated this 11th day of October, 2010 JUDGMENT Exts.P5 and P6, orders dismissing Exts.P3 and P4, applications are under challenge in this petition. Respondent filed O.S.No.769 of 2008 in the court of learned Principal Sub Judge, Kollam for realisation of money and an ex parte decree was passed against petitioner on 11-06-2009. Petitioner filed Ext.P2, application to set aside the ex parte decree. I am told that the written statement also was filed in the meantime. Ext.P2, application was dismissed for default on 29-09-2009. Thereon, petitioner filed Ext.P3, application to set aside dismissal of Ext.P2, application and Ext.P4, application to condone the delay of 74days in filing Ext.P3, application. Exts.P3 and P4, applications were dismissed as per Exts.P5 and P6. Hence this petition. Learned counsel contended that it was on account of an omission on the part of clerk of the counsel in taking steps that Exts.P3 and P4, applications happened to be dismissed. 2. I have gone through Ext.P6, order dismissing Ext.P4, application (I.A.No.150 of 2010) to condone the delay. Learned Principal Sub Judge has observed that there is no proper W.P(C).No.22354 of 2010 : 2 : explanation for the delay and hence the application is only to be dismissed. 3. I have gone through the affidavit in support of Ext.P4, application. It is stated that the advocate clerk who was instructed to take steps had left the job without giving prior information to the advocate of petitioner in the trial court and hence the omission to take necessary steps in the matter. I am persuaded to think that absence of petitioner on 29-09-2009 when Ext.P2, application was taken up for hearing is explained. I am also satisfied that the delay in filing Ext.P3, application is explained. Hence I am inclined to allow this application and Exts.P3 and P4, applications. Accordingly this petition is allowed in the following lines: (i) Exts.P5 and P6, orders dismissing Exts.P3 and P4, applications are set aside and those applications will stand allowed. (ii) Ext.P2, application will stand restored to file. (iii) Learned Sub Judge shall proceed with Ext.P2, application as provided under law and pass appropriate orders on merit. (THOMAS P JOSEPH, JUDGE) Sbna/-