IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 10TH DECEMBER 2009 / 19TH AGRAHAYANA 1931 WP(C).No. 31006 of 2009(O) -------------------------- CMA.28/2007 of II ADDL.DISTRICT COURT,ERNAKULAM OS.1659/2003 of II ADDL.M.C., ERNAKULAM .................... PETITIONERS: --------------- 1. MARY JOSEPH, AGED 74, W/O.OUSEPH, NADUTHARA HOUSE, KENNEDYMUKU, THRIKAKARA, ERNAKULAM DISTRICT. 2. RAPHEAL JOSEPH, S/O.OUSEPH, NADUTHARA HOUSE, KENNEDYMUKU, THRIKAKARA. 3. PHILOMINA RAPHEAL, D/O.OUSEPH, NAMBOORATH HOUSE, KAKANAD. 4. GEORGE, S/O.OUSEPH, NADUTHARA HOUSE, KENNEDYMUKU, THRIKAKARA. 5. MARY THOMAS, D/O.OUSEPH, VALIAPARAMBIL HOUSE, PALARIVATTOM, KOCHI-25. BY ADV. MR.G.SREEKUMAR (CHELUR) MS.PREETHY KARUNAKARAN MR.K.RAVI (PARIYARATH) RESPONDENTS: --------------- 1. THE ARCHDIOCESE OF VERAPOLY, BROADWAY, ERNAKULAM, REPRESENTED BY ITS PROCURATOR AND POWER OF ATTORNEY HOLDER REV.FR.JECOME, CHAMMANIKODATH, RESIDING AT LATIN ARCHBISHOP HOUSE, BROADWAY, ERNAKULAM. 2. JOSEKUTTAN @ JOSEPH, S/O.OUSEPH, NADUTHARA HOUSE, KENNEDYMUKU, THRIKAKARA. ADV. MR.T.B.THANKAPPAN FOR R1 MR.T.T.HARIKUMAR FOR R1 MR.PEEYUS A.KOTTAM FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 31006 of 2009(O) APPENDIX PETITIONERS' EXHIBITS: EXT.P1: PLAINT IN O.S.NO.1659/2003 ON THE FILE OF THE MUNSIFF COURT, ERNAKULAM DTD.26.11.2003. EXT.P2: I.A.NO.6007/2004 IN O.S.NO.1659/2003 DTD. 28.7.2004 ON THE FILE OF THE MUNSIFF COURT, ERNAKULAM. EXT.P3: COUNTER AFFIDAVIT FILED BY THE FIRST RESPONDENT HEREIN TO EXT.P2 APPLICATION DTD. 5.12.2005. EXT.P4: ORDER PASSED IN I.A.NO.6007/2004 IN O.S.NO.1659/2003 DTD.25.1.2006 ON THE FILE OF THE 2ND ADDL.MUNSIFF COURT, ERNAKULAM. EXT.P5: CMA.NO.28/2007 DATED 22.2.2007 ON THE FILE OF THE DISTRICT COURT, ERNAKULAM. EXT.P6: JUDGMENT IN CMA.NO.28/2007 DTD.8/9/2009 ON THE FILE OF THE DISTRICT COURT, ERNAKULAM. RESPONDENTS' EXHIBITS: NIL ................. // TRUE COPY // P.A. TO JUDGE. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.31006 of 2009 - O --------------------------------- Dated this the 10th day of December, 2009 J U D G M E N T The legal representatives of the first defendant in O.S.No.1059/2003 against whom an exparte decree was passed, are the petitioners in the writ petition challenging the concurrent decision rendered by the two courts below declining the relief canvassed for setting aside the exparte decree. The above suit was filed by the first respondent seeking a decree of perpetual prohibitory injunction, recovery of possession and fixation of boundary. There were two defendants in the suit, the predecessor of the present petitioners and the second defendant who was none other than one of the sons of the first defendant. For the nonfiling of the written statement and also vakalath after entering appearance in the suit, both the defendants were set exparte and later, a decree was passed in favour of the plaintiff. Application for setting aside the exparte decree moved by the defendants was dismissed for the reason they did not produce the medical certificate to substantiate illness of the first defendant W.P.(C).No.31006 of 2009 - O 2 which was canvassed as a ground for nonappearance of the defendants before the court. Challenge against that order by way of an appeal was also turned down by the learned District Judge vide Ext.P6 judgment. 2. I heard the learned counsel on both sides. 3. At the time of hearing it is submitted that the exparte decree is now being put in execution and an advocate commissioner has been appointed to fix the boundary since on the trial side no commission was taken. From the submissions made, it appears, a decree for recovery of possession, perpetual prohibitory injunction and fixation of boundary had been passed without identifying the property. In considering the application for setting aside the exparte decree a court can also look into the merit of the decree that has been granted. That is also a relevant circumstance with respect to the sufficient cause to be pleaded and established by the party applying for setting aside the exparte decree. In the present case, it is seen, an application had been moved by the defendants within time for setting aside the exparte decree. Non-production of the medical W.P.(C).No.31006 of 2009 - O 3 certificate to substantiate the illness of the first defendant, which was canvassed as the cause for nonappearance, persuaded the learned Munsiff to dismiss that application. In appeal, the learned District Judge had adverted to some other grounds to sustain the order of court below, that vakalath was filed by the defendants in the application moved for restoration much later to its presentation and in the appeal one of the defendants, the second defendant, who had moved the application for restoration had been made as a co-defendant with the plaintiff. The reasons so spelt out in Ext.P6 order cannot be given any consideration in examining whether the defendants, against whom an exparte decree had been passed, had shown sufficient cause for setting aside that decree. If the restoration application had been presented without a vakalath then the defect should have been pointed out and corrected then and there giving petitioners an opportunity to cure that defect. That cannot be taken as a ground to dismiss the application. Whatever that be, on the facts and circumstances presented and the submissions made, I find an opportunity can be extended to the petitioners to have a W.P.(C).No.31006 of 2009 - O 4 decision in the suit on merits by setting aside the exparte decree, subject to terms, compensating the injury that is likely to be suffered by the respondent/plaintiff. Petitioner shall pay a sum of Rs.8,000/- as cost to the first respondent towards the injury likely to be caused to them in setting aside the decree passed exparte in their favour and also in prolonging of the litigation pursuant to the setting aside of that decree. Cost ordered shall be paid by the petitioners by payment to the counsel appearing for the first respondent within two weeks from the date of this judgment, and a memo filed thereof forthwith. For, report, post after two weeks. S.S.SATHEESACHANDRAN, JUDGE. bkn/-