IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 26TH JULY 2010 / 4TH SRAVANA 1932 WP(C).No. 23202 of 2010(O) -------------------------- AGAINST THE ORDER DATED 19/06/2010 IN IA 1202/09 & IA 1202(a)/2009 IN OS.34/2007 of MUNSIFF COURT, CHALAKUDY .................... PETITIONER(S): --------------- 1. LILLY W/O VARGHESE, PAKIDA THITTAYIL HOUSE, KURISUPALLI ROAD, PERUMANNOOR PO, ERNAKULAM DT. 2. SOPHIA W/O PAUL, AATTOKKARAN HOUSE, PALAYAMPARABU PO, VYNTHALA, THRISSUR DT. 3. JIJI W/O NIJI, OLLUKKARAN HOUSE, PADIYOOR PO, THRISSUR DT. BY ADV. SRI.K.G.BALASUBRAMANIAN RESPONDENT(S): --------------- 1. SANTHOSH ANTONY, S/O PAYYAPPILLY ANTONY, EAST CHALAKUDY PO, THRISSUR DT., PIN 680 307. 2. JIJO ANTONY S/O -DO- , -DO- , -DO-. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C)No.23202 of 2010 -------------------------------------- Dated this the 26th day of July, 2010. JUDGMENT A litigation (said to have been) initiated by the mother is being continued by the children after her death pending suit. The mother (allegedly) sued respondents for a declaration of her title over 45 cents, building and other structures described in the plaint schedule, cancellation of document Nos.6278 of 2006 and 6279 of 2006 executed by her and for other reliefs. The mother died pending suit. Thereon petitioners (daughters) got themselves impleaded as additional plaintiffs. Plaint was rejected for non-payment of balance court fee and later it was re-admitted. Respondents were set exparte. They filed an application to set aside the exparte order but that was dismissed. As respondents did not file written statement the suit was decided exparte. Thereon respondents filed Exts.P1 and P2, applications - I.A.Nos.1202 of 2009 and 1202(a) of 2009 to set aside the exparte decree and to condone the delay of 33 days in filing that application. Petitioners opposed the application vide Exts.P3 ad P4, objections. Learned Munsiff as per Ext.P5, common order allowed Exts.P1 and P2, applications and set aside the exparte decree which is under challenge in this Writ Petition. Learned counsel for petitioners contend that it is when sufficient cause is shown that the court gets jurisdiction to WP(C) No.23202/2010 2 condone the delay and set aside the exparte decree. But in this case no sufficient cause is shown. Learned counsel has invited my attention to Ext.P5, common order. 2. It is true that in Ext.P5, common order, learned Munsiff has only stated, “After hearing both parties I feel that the explanation offered by the petitioners for the reason for the exparte decree and also for the delay are acceptable. Therefore I am inclined to set aside the exparte decree on condoning the delay in filing the former application”. To appreciate the contention raised by learned counsel it is necessary to refer to the facts stated in the affidavit in support of Exts.P1 and P2. It is stated in the affidavit sworn to by respondent No.1 in support of Exts.P1 and P2, that the mother was staying with him throughout and he was looking after her. In his absence as he was working abroad, his wife was looking after the mother. It is while so that respondent N.1 learnt about institution of the suit. He came to his native place in February, 2007. The mother told him that it was due to the insistence of the daughters that she happened to file the suit and she promised to withdraw the suit. It is while so that plaint was rejected for non-payment of balance court fee and later re-admitted. Respondent No.1 was under the WP(C) No.23202/2010 3 impression that he could file written statement while he came to his native place in February, 2007. While so himself and respondent No.2 were set exparte and to set aside that order they filed I.A.No.967 of 2008. It was dismissed on 29.06.2009. That was followed by the exparte decree on 20.07.2009. Exts.P1 and P2, applications are filed with a delay of 33 days. It is stated that delay happened in the above circumstances and there was no willful laches on his part. 3. No doubt as learned counsel for petitioners argued it is on sufficient cause being shown that court gets the discretionary power to decide whether the delay has to be condoned and the exparte decree has to be set aside. It is true that learned Munsiff has not in so many words stated in Ext.P5, common order about satisfaction of sufficient cause. As I have stated above, learned Munsiff has observed that “I feel that the explanation offered by the petitioners for the reason for the exparte decree and also for the delay are acceptable” I am persuaded to think that learned Munsiff was satisfied of the existence of sufficient cause as revealed from the affidavits of respondent No.1 and has exercised the discretion in favour of respondent No.1. Having regard to the fact brought out in the affidavit of respondent No.1 as to the absence of respondents in court on the relevant day I am inclined to think that respondents have to be given an opportunity to contest the suit on merit. Now the fight is between brothers and sisters. It is appropriate that parties considered WP(C) No.23202/2010 4 whether they could reach an amicable settlement if necessary through the Adalath. Having regard to the facts and circumstances of the case I do not find reason to interfere with the impugned common order. Resultantly this Writ Petition is dismissed. Learned Munsiff is directed to decide the contentious issues untrammelled by any observation contained in this judgment. THOMAS P.JOSEPH, Judge. cks