IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 13TH AUGUST 2008 / 22ND SRAVANA 1930 WP(C).No. 20360 of 2008(W) ---------------------------------------- (O.S.NO.244/05 OF MUNSIFF'S COURT, VARKALA) PETITIONER: -------------------- MAYA, D/O.RAGHAVAKURUP, R.K.BHAVAN, PULIYOORKONAM DESOM, MADAVOOR VILLAGE, REPRESENTED BY HER AUTHORISED POWER OF ATTORNEY HOLDER K.RAGHAVA KURUP, S/O.KESAVAPILLAI, R.K.BHAVAN, PULIYOORKONAM DESOM, MADAVOOR. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENTS: ------------------------- 1. BALAKRISHNAKURUP, S/O.KESAVA PILLAI, SREEMANDIRAM, PULIYOORKONAM, MADAVOOR VILLAGE. 2. SURESH, S/O.CHELLAPPAN PILLAI, CHARUVILA SREEVILAS0M, VELLOORKONAM DESOM, MADAVOOR VILLAGE. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NO.20360 OF 2008 =========================== Dated this the 13th day of August, 2008 JUDGMENT This petition is filed under Article 227 of the Constitution of India challenging Exts.P10 and P11 orders passed by Munsiff Court, Varkala in I.A.2147/2007 a petition filed under Order IX Rule 13 of Code of Civil Procedure to set aside the ex parte decree passed in favour of petitioner herein in the counterclaim and for restoration of the suit instituted by the petitioner which was dismissed for default. I.A.960/2008 was filed by petitioner for taking prosecution against respondents for filing false petition. 2. Learned counsel appearing for petitioner was heard. 3. The argument of the learned counsel is that as seen from the copy of B Diary and the decree, on 15.11.2007 when the suit was dismissed and counterclaim was allowed, plaintiff was present in W.P.(C)20360/2008 2 court and did not adduce evidence and therefore the case of the petitioner in I.A.2147/2007 that he was not present and therefore the ex parte decree is to be set aside is not sustainable and learned Munsiff should not have allowed the application. Learned counsel also argued that learned Munsiff in Ext.P10 order itself found that case of the petitioner is not correct and he was present in court on 15.11.2007 and did not adduce evidence and therefore dismissal of I.A.960/2008 is also not sustainable. Learned counsel further pointed out that suit was originally dismissed on 24.11.2006 and the counterclaim was allowed and on the application filed by respondents the suit was restored and the decree was set aside and even thereafter the suit was not prosecuted or the counterclaim was defended and in such circumstance, further opportunity should not have been granted and in any case if the orders are not set aside a direction is to be issued for disposal of the suit within a time frame. W.P.(C)20360/2008 3 4. Though Ext.P12 B Diary and the decree shows that plaintiff was present on 15.11.2007, Ext.P13 judgment passed by the learned Munsiff makes the position clear. In paragraph 7 of the judgment it is recorded that though suit was included in the special list and posted for evidence, the plaintiff was absent and no evidence was adduced on his side. In such circumstance, when Ext.P13 the judgment passed on that day shows that plaintiff was absent, it cannot be found that he was present, eventhough in I.A.2147/2007 learned Munsiff found otherwise. Under Ext.P10 order learned Munsiff has only granted an opportunity to the respondent to have a decision on merit. I do not find any illegality or irregularity warranting interference in that order. When the case of petitioner that he was not present on 15.11.2007 when the suit was dismissed for default and the counterclaim was decreed ex parte and that is supported by Ext.P13 judgment, I do not find any reason to interfere with the dismissal of W.P.(C)20360/2008 4 I.A.960/2008 also. Writ Petition is therefore dismissed. Munsiff, Varkala is directed to dispose O.S.244/2005 and the counterclaim without further delay, at any rate, within four months from the date of receipt of a copy of this judgment. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006