IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 6TH NOVEMBER 2009 / 15TH KARTHIKA 1931 WP(C).No. 22124 of 2004(H) -------------------------- OS.1327/2003 of I ADDL.M.C.,ERNAKULAM .................... PETITIONER(S): --------------- JAYAPRAKASH, AGED 38 YEARS, MAYURA APARTMENTS, NEAR BHARATHIYA VIDHYA BHAVAN, ELAMAKKARA, EDAPPALLY. BY ADV. SRI.A.T.ANILKUMAR RESPONDENT(S): --------------- 1. PADMA @ REMANI, D/O. LAKSHMIKUTTY AMMA MEDEDATHUVEETIL HOUSE, ELAMAKKARA, EDAPPALLY. 2. KAMALA, AGED 43 YEARS, W/O. PRABHAKARAN, `PRABHA', MURADAKKAL LANE, EDAPPALLY. ADV. SRI.T.G.SUNIL (PRANAVAM) FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jma WP(C).No. 22124 of 2004 APPENDIX Petitioners Exhibits: Ext.P1: True copy of order in I.A. No. 3939/2004 in O.S.No. 1327/2003 dt.16.7.2004 passed by 1st Addl. Munsiff, Ernakulam. Ext.P2: True copy of order in I.A. No.3940/2004 in O.S.No.1327/2003 dt. 16.7.2004 passed by 1st Addl. Munsiff, Ernakulam. /True copy/ P.A. To Judge K.SURENDRA MOHAN, JJ. ------------------------------------------- WPC No. 22124 of 2004 ------------------------------------------- Dated this the 6th day of November, 2009 JUDGMENT This writ petition under Article 227 of the Constitution of India is filed challenging two orders of the Ist Additional Munsiff, Ernakulam dismissing I.A.No.3939/2004 and I.A.No.3940/2004 in O.S.No.1327/2003. The said orders are evidenced herein by Exts.P1 and P2. 2. The petitioner is the first defendant in O.S.No.1327 of 2003. The suit was filed for a permanent prohibitory injunction restraining the petitioner and the second defendant in the suit from using the plaint-B schedule property as a pathway and for other reliefs. Summons in the suit was served on the petitioner on 20.9.2003. Thereafter the suit was posted for filing of the written statement of the petitioner. The petitioner filed written statement on 5.6.2004. Along with the written statement, the petitioner also filed I.A.No.3940/2004 for WP(C)No.22124/2004 2 receiving the written statement and I.A.No.3939 of 2004 for setting aside the order declaring the first defendant exparte. According to the petitioner, though a prayer for time to file written statement made on his behalf was granted by the court, by mistake, it was recorded as granted to the second defendant. As a result of the above mistake, the petitioner is alleged to have been set exparte by the court. The trial court considered the petition filed by the petitioner and observing that no written statement had been filed within the period of 90 days prescribed by Order VIII Rule 1 of the CPC; both the petitions have been dismissed. The above writ petition was admitted in the year 2005 and the suit has been remaining stayed for the passed 4 years. 3. I have heard Smt.Shylaja who appears for the revision petitioner and Sri.T.G.Sunil who appears for the contesting respondent. 4. It is to be noted that the petitioner has already filed written statement and the trial of the suit could have been proceeded with and completed by now, if the petition WP(C)No.22124/2004 3 to receive the same as well as the petition to set aside the order declaring him exparte were allowed. There is no rule that the court is powerless to grant time in appropriate cases for filing written statement beyond the period of 90 days stipulated by the Code. The above issue has already been finally settled by the decisions of the Apex Court on the point. In view of the above, the court below erred in dismissing the petitions filed by the petitioner. On a consideration of the facts and circumstances of the case, I feel that this is a fit case in which the petitions filed by the petitioner can be allowed and an opportunity given to the petitioner to contest the suit. The Civil Revision Petition is accordingly allowed. 1) The orders of the Ist Additional Munsiff’s Court, Ernakulam dated 16.7.2004 in I.A.No.3939/2004 and 3940/2004 in O.S.No.1327 of 2003 evidenced in these proceedings by Exts.P1 and P2 are set aside and the said interlocutory applications are allowed. 2) The Ist additional Munsiff Court shall WP(C)No.22124/2004 4 make every endeavour to expedite the trial of the suit, considering the long pendency of the matter and shall try and dispose of the same, as expeditiously as possible, at any rate, within a period of six months from the date of receipt of a copy of this order. The parties shall suffer their respective costs. K.SURENDRA MOHAN, JUDGE css/