IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 21ST OCTOBER 2010 / 29TH ASWINA 1932 WP(C).No. 23627 of 2010(O) -------------------------- AGAINST THE ORDER IN IA 2022/2008 IN AS.97/2008 of SUB COURT,KOCHI OS.63/2007 of MUNSIFF COURT, KOCHI .................... PETITIONER(S): --------------- S.CHITRA, W/O.DILEEP, AGED 33 YEARS, CHADAENGATT HOUSE, KUMBALANGI P.O., KUMBALANGI VILLAGE, KOCHI TALUK, ERNAKULAM DISTRICT, PIN-682 007. BY ADV. SRI.S.SREEKUMAR SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.S.VAIDYANATHAN RESPONDENT(S): --------------- JOSE ANTONY, S/O.BAPPU, AGED ABOUT 57 YEARS, KANNAMKERY HOUSE, KUMBALANGI P.O., KUMBALANGI VILLAGE, KOCHI TALUK, ERNAKULAM DISTRICT, PIN-682 007. ADV. SRI.SABU GEORGE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/10/2010, ALONG WITH WP(C) NO.23569/2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.23627/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF DOCUMENT NO.2692/1989 DATED 8.9.1989 EXT.P2 TRUE COPY OF DOCUMENT NO.2693/1989 DATED 8.9.1989 EXT.P3 TRUE COPY OF PLAINT IN OS 63/2007 FILED BY FIRST PETITIONER BEFORE THE MUNSIFF COURT, KOCHI DATED 9.2.2007 EXT.P4 TRUE COPY OF PLAINT IN OS 69/2007 FILED BY RESPONDENT BEFORE THE MUNSIFF COURT, KOCHI EXT.P5 TRUE COPY OF JUDGMENT IN OS 63/2007DATED 8.2.2008 PASSED BY THE MUNSIFF COURT, KOCHI EXT.P6 TRUE COPY OF JUDGMENT IN OS 69/2007DATED 8.2.2008 PASSED BY THE MUNSIFF COURT, KOCHI EXT.P7 TRUE COPY OF ORDER IN IA NO.2022/2008 DATED 27.5.2010 PASSED BY SUB COURT, KOCHI EXT.P8 TRUE COPY OF ORDER IN IA NO.2009/2008 DATED 27.5.2010 PASSED BY SUB COURT, KOCHI //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) Nos.23569 & 23627 of 2010 -------------------------------------- Dated this the 21st day of October, 2010. JUDGMENT These petitions are in challenge of Exts.P7 and P8, orders passed by the learned Sub Judge, Kochi on I.A.No.2022 of 2008 in A.S. No.97 of 2008 and I.A.No.2009 of 2008 in A.S.No.93 of 2008. Those appeals arose from common judgment and decree in O.S.Nos.63 of 2007 and 69 of 2007. O.S.No.63 of 2007 filed by petitioner No.1 in W.P.(C) No.23569 of 2010 was dismissed for default while O.S.No.69 of 2007 filed by the respondent was decreed exparte. A.S.No.97 of 2008 was filed with a delay of 33 days while in A.S.No.93 of 2008 the delay involved is 247 days. In the affidavits in support of the applications it is stated that petitioner No.1 was laid up due to back ache and could not move around. She therefore could not go to the counsel and give instructions to the counsel. For the said reason there was delay in applying and obtaining copy of judgment and decree. Applications were opposed by the respondent. Learned Sub Judge found that delay is not properly explained and dismissed I.A.Nos.2022 of 2008 and 2009 of 2008 by separate orders. Those orders are under challenge in these petitions. 2. Initially maintainability of these petitions was doubted for the reason that petitioners if aggrieved by the dismissal of appeals consequent to dismissal of the applications to condone the delay could challenge the judgment and decree in the appeal and in those appeals challenge correctness of the order refusing to condone the delay. It is however submitted by counsel on both WP(C) Nos.23569 & 23627/2010 2 sides that though applications to condone the delay have been dismissed vide separate orders dated May 27, 2010, no consequential orders are so far passed on the appeals. In otherwords the appeals are not so far disposed of by the learned Sub Judge consequent to the dismissal of the application to condone the delay. In such situation, the only orders that has been passed against the petitioners being Exts.P7 and P8, orders on the applications to condone the delay, it is possible to challenge those orders under Article 227 of the Constitution. In Lilly v. Ragesh (2004(3) KLT 712) while this Court holding that a dismissal of an application to set aside the exparte decree consequent to the dismissal of application for condonation of delay is not revisable for the reason that the party could challenge dismissal of the application to set aside the exparte decree in apeal under Order XLIII Rule 1(d) of the Code of Civil Procedure (for short, “the Code”) and in that appeal challenge correctness of the order dismissing the application to condone the delay. It was observed that different would be situation where dismissal of the application to condone the delay was under challenge in revision and while that revision was pending, application to set aside the exparte decree itself was dismissed. In such a situation this Court held that the party cannot be asked to file an appeal against dismissal of the application to set aside the exparte decree and in that appeal challenge correctness of the order refusing to condone the delay. That principle should apply to the facts of this case. As I stated, no orders are stated to be passed on the appeals consequent to dismissal of I.A.Nos.2022 of 2008 and 2009 of 2008. Hence I hold that these WP(C) Nos.23569 & 23627/2010 3 petitions in challenge of Exts.P7 and P8, orders are maintainable. 3. Now the question is whether Exts.P7 and P8, orders require interference. In A.S.No. 97 of 2008 delay involved is of 33 days while in A.S.No.93 of 2008 delay involved is 247 days. The affidavits in support of both the applications say that petitioner No.1 was laid up due to back ache and could not move around and therefore unable to meet her counsel and give instructions to get certified copy of judgment and decree in the suits on time. But I must bear in mind that delay involved in A.S.No.97 of 2008 is 33 days and in A.S.No.93 of 2008 it is 247 days. There is an apparent contradiction in the case pleaded by the petitioners. It is pointed out by the learned counsel for respondent that even the application to condone the delay was dismissed for default later it has to be restored to file. Normally parties should be given opportunity to contest the case on merit unless there is contumacious laches or gross negligence on their part and that minor laches are to be corrected by the common curative of costs. Petitioners have invited decrees against them. Normally by inviting delay in filing appeals they did not stand to gain. Having regard to the nature of contentions advanced and the relief granted in the suit and in so far as there is nothing on record to show that there was contumacious laches or gross negligence on the part of petitioners in filing the appeals, I am inclined to give petitioners an opportunity to prosecute the appeals but on terms of cost. Having regard to the facts and circumstances of the case and also considering the fact that applications to condone the delay were once dismissed for default and restored to file, I direct that the applications will stand allowed on WP(C) Nos.23569 & 23627/2010 4 condition of payment of cost of Rs.7,000/- within a period of one month from this day. Resultantly these Writ Petitions are allowed in the following lines: i. Exts.P7 and P8, orders are set aside and I.A.Nos.2022 of 2008 and 2009 of 2008 are allowed on condition that petitioners deposited in the court of learned Sub Judge, Kochi for payment to the respondent Rs.7,000/- (Rupees Seven thousand only) by way of cost within a month from this day. ii. It is made clear that it will be sufficient compliance with the said direction if cost is paid to the counsel for respondent in these Writ Petitions and, the learned counsel files a memo to that effect in the court of learned Sub Judge, Kochi within the said period of one month from this day. iii. On compliance of the above conditions I.A.Nos.2022 of 2008 In A.S.No.97 of 2008 and 2009 of 2008 in A.S.No.93 of 2008 will stand allowed and the learned Sub Judge, Kochi shall deal with the appeals as provided under Order XLI Rule 11 of the Code. In that event, parties shall appear in the court of learned Sub Judge on 24.11.2010. iv. In case the deposit/payment as aforesaid is not made and no memo is filed within the aforesaid time, Writ Petitions will stand dismissed in confirmation of the impugned orders. THOMAS P.JOSEPH, Judge. cks