IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 10TH JULY 2008 / 19TH ASHADHA 1930 WP(C).No. 20720 of 2008(N) -------------------------- OS.234/1999 of ADDL.SUB COURT, PALAKKAD .................... PETITIONERS:PETITIONERS:DEFENDANTS: ---------------------------------------------------------------- 1. NOORMUHAMMED, S/O.ABDUL RAHIMAN, RESIDING AT PANDARAKALAM, KUNISSERY AMSOM AND DESOM, ALATHUR TALUK. 2. SHEREEFA UMMA, D/O.MOIDEENKUTTY, RESIDING AT ..DO...DO... BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P RESPONDENTS:RESPONDENTS:PLAINTIFF NO.1 & LRS OF PLAINTIFF NO.2 ----------------------------------------------------------------------------------------------------------------- 1. MEERAN SAHIB, S/O.MOIDEENKUTTY, RESIDING AT PARUTHIKKADU, KUNISSRY AMSOM AND DESOM, KUNISSERY POST, ALATHUR TALUK. 2. BALKEES, D/O.LATE HAJIRA UMMA, RESIDING AT ..DO..DO... 3. ABDUL RAHIMAN, S/O..DO.... RESIDING AT ...DO...DO..... 4. SABURA, D/O.....DO...RESIDING AT ...DO...DO.... 5. SHAJAHAN, S/O...DO....RESIDING AT ...DO...DO..... 6. PYARIJAN, D/O. ..DO... RESIDING AT ..DO..DO.... 7. KADEEJA, D/O....DO..... RESIIDNG AT ...DO..DO.... 8. ABDUL FAROOK, S/O...DO... RESIDING AT ..DO..DO... BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.20720 of 2008 ------------------------------- Dated this the 10th July, 2008. J U D G M E N T This petition is filed by the defendants in O.S.No.234 of 1999, on the file of Sub Court, Palakkad, challenging the cost portion of Ext.P3 order. Ext.P3 is an order passed in I.A.No.1368 of 2008, an application filed under Order IX of Rule 13 of Code of Civil Procedure to set aside the ex-parte decree. The suit was decreed ex parte on 27.3.2008. Petitioners filed an application to set aside the ex-parte decree contending that second petitioner is the maternal aunt of the first petitioner and first petitioner is conducting the case and her daughter is residing at Mumbai along with her husband and her daughter underwent a surgery at Mumbai, and, therefore, first petitioner has to be at Mumbai, where the daughter was hospitalised, and in such circumstances, she could not appear and that is the reason why the suit happened to be decreed ex parte and hence ex parte decree is to be set aside. W.P.(C) No.20720 of 2008 2 2. Respondents opposed the application. Learned Sub Judge, on the evidence, found that there is no material to support the case of petitioners that the daughter of first petitioner was hospitalised or that first petitioner was at Mumbai, and therefore, she could not appear. Still learned Sub Judge taking a lenient view allowed the application on terms. 3. The argument of the learned counsel appearing for the petitioners is that cost awarded is excessive. The cost awarded by learned Sub Judge is only Rs.4000/=. When learned Sub Judge found that petitioners did not establish the case, taking a lenient view, petition was allowed. In such circumstances, I do not find any reason to interfere with the discretion exercised by the learned Sub Judge or the quantum of the cost fixed. I do not find any reason to modify the cost awarded. The learned counsel for the petitioners further submitted that the period fixed under Ext.P3 order was extended, but it will expire tomorrow, and, therefore, petitioners may be permitted to pay the cost within a reasonable time. If petitioners pay or deposit W.P.(C) No.20720 of 2008 3 the cost, as directed under Ext.P3 order, within 10 days from this day, it will be treated as due compliance of Ext.P3 order. M.SASIDHARAN NAMBIAR, JUDGE nj.