IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 14TH AUGUST 2009 / 23RD SRAVANA 1931 WP(C).No. 19063 of 2006(T) -------------------------- OS.314/1999 of II ADDL.SUB COURT,TRIVANDRUM .................... PETITIONER: ------------------- T.K.JACOB, RESIDING AT T.C.4/1039, HOUSE NO.4, WATT'S LANE, NANTHENCODE, THIRUVANANTHAPURAM. BY ADV. SRI.J.HARIKUMAR SRI.HARIKUMAR.S. RESPONDENT(S): ----------------------- 1. FAMILY INN OFFICE AT T.C.4/424, AMBALAMUKKU, KOWDIAR, THIRUVANANTHAPURAM, REP. BY ITS MANAGING PARTNER SMT.RACHEL OOMEN, PERMENANT RESIDENCE AT BETHEL MANDIRAM, KULAKKADA, KOLLAM DISTRICT, PRESENTLY RESIDING AT T.C.4/424, KURAVANKONAM, THIRUVANANTHAPURAM. 2. SMT.RACHEL OOMEN, W/O.LATE K.P.OOMMEN, MANAGING PARTNER OF DO. DO. 3. PRINCY JOHNSON, AGED 43, W/O.K.V.JOHNSON T.C.4/423, AMBALAMUKKU OF DO. DO. 4. MASTER RANA JOHNSON, AGED 17, S/O.K.O.JOHNSON OF DO. DO. 5. MISS.VEENA JOHNSON, AGED 15, D/O.K.O.JOHNSON OF DO. DO. ADV. SRI.R.MANOJ SMT.INDIRA RAVEENDRAN SRI.P.RAVEENDRAN PILLAI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 19063 of 2006(T) APPENDIX PETITIONER'S EXHIBITS:- EXT.P1: COPY OF THE PLAINT IN OS.NO.314/1999 ON THE FILE OF THE 2ND ADDL.SUB COURT, THIRUVANANTHAPURAM. EXT.P2: COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER DATED 6.8.2001 IN OS.NO.314/1999 ON THE FILE OF THE 2ND ADDL.SUB COURT, THIRUVANANTHAPURAM. EXT.P3: COPY OF ORDER DATED 10.6.2002 ON IA.NO.1238/2001 IN OS.NO.314/ 1999 ON THE FILE OF THE 2ND ADDL.SUB COURT, THIRUVANANTHAPURAM. EXT.P4: COPY OF IA.NO.2304/2002 DATED 25.7.2002 IN OS.NO.314/1999 ON THE FILE OF THE 2ND ADDL.SUB COURT, THIRUVANANTHAPURAM. EXT.P5: COPY OF ORDER DTD.25.7.2003 ON IA.NO.2304/2002 IN OS.NO.314/ 1999 ON THE FILE OF THE 2ND ADDL.SUB COURT, THIRUVANANTHAPURAM. EXT.P6: COPY OF THE ORDER DATED 21.12.2005 IN CMA.NO.136/2003 OF THE DISTRICT COURT, THIRUVANANTHAPURAM RECEIVED ON 6.7.2006. RESPONDENTS EXHIBITS:- NIL. ( TRUE COPY ) P.A. to Judge. Kvs/- P.S.GOPINATHAN, J. == = = = = = = = = = = = = = = = = = WP(C).No.19063 of 2006-T. = = = == = = = = = = = = = = = = = = Dated this the 14th day of August, 2009. J U D G M EN T Petitioner is the defendant in Ext.P1 suit, OS.No.314/1999, on the file of the Additional Subordinate Judge, Thiruvananthapuram, for realisation of a sum of Rs.1,46,252/-. Though summons was served upon the petitioner, he failed to appear. Consequently, he was declared exparte. Later, he filed Ext.P2 written statement stoutly contesting the suit, along with petition IA.No.1238/2001 to set aside Ext.P1 exparte order. By Ext.P3, the petition was allowed on condition that the petitioner should pay Rs.3,000/- within a period of one month. According to the learned counsel, because of the poverty, the petitioner could not pay the amount in time. So he sought for further time. The trial court was not pleased to grant time. The petition was dismissed by Ext.P3 for the reason that the cost was not paid in time. Thereafter, the suit was decreed exparte. Seeking an order to set aside the decree, petitioner filed Ext.P4 petition as IA.No.2304/2002. By Ext.P5 the trial court dismissed the petition for the reason that the earlier opportunity WP(C).No.19063 of 2006-T. -: 2 :- was not availed by not paying the cost and that Ext.P4 petition is barred by the principle of resjudicata. Assailing Ext.P5 order an appeal as CMA.No.136/2003 was preferred before the District Court, Thiruvananthapuram. The learned District Judge by Ext.P6 judgment found that the petitioner was given sufficient opportunity but that was not availed, though found that Ext.P4 petition is not barred by the principle of resjudicata. Consequently, by Ext.P6 judgment the appeal was dismissed. The correctness of the said judgment is canvassed in this writ petition. 2. Heard the learned counsel for the petitioner. It didn't appear that the failure to deposit the cost ordered by the trial court is due to any reason other than the poverty as now contended. The trial court hasn't shown any reason not to grant extension of time sought by the petitioner. In my opinion, the trial court should have given one more opportunity to meet the ends of justice or the written statement should have been accepted with liberty to the respondent to take steps to realize the cost by execution. Having failed to rule out the possibility that the poverty prevented the petitioner availing the earlier opportunity , as submitted by the learned counsel for the petitioner and taking note that the petitioner had already filed the written statement, I find that it would be just and appropriate to WP(C).No.19063 of 2006-T. -: 3 :- provide a further opportunity to the petitioner to defend Ext.P1 suit. The inconvenience caused to the respondent can be compensated. In the result, this writ petition is allowed. Ext.P6 judgment is set aside on condition that the petitioner shall deposit Rs.3,000/- before the trial court as cost within one month. On deposit of cost, Ext.P4 petition IA.No.2304/2002 would stand allowed. In the event of failure to deposit cost within one month, this petition would stand dismissed. No costs. P.S.GOPINATHAN, JUDGE. Kvs/-