IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 22ND AUGUST 2011 / 31ST SRAVANA 1933 WP(C).No. 21644 of 2010(O) -------------------------- I.A.NO.866/2010 IN OS.68/2009 of MUNSIFF COURT, CHITTUR .................... PETITIONER(S): ------------------------ 1. RAHMATH,W/O.YUSAF,AGED 45 YEARS, RESIDING AT KANNIMARI,PERUMATTY VILLAGE,CHITTUR TALUK, PALAKKAD DISTRICT. 2. YUSAF,S/O.VELLAPPA RAWTHER,AGED 55 YEARS,RESIDING AT DO. DO. 3. PETTA,W/O.SHAIK MUSTHAFA,AGED 70 YEARS, RESIDING AT KARADIKUNNU,KANNIMARI, DO. 4. CHINNAVAN,S/O.SHAIK MUSTHAFA,AGED 31 YEARS, RESIDING AT DO.. BY ADV. SRI.JACOB SEBASTIAN RESPONDENT(S): --------------------------- UNNI @ CHATHU ACHAN,S/O.EMURI NETHYAR AMMA, RESIDING AT DAFEDAR CHALLA, PERUMATTY VILLAGE, CHITTUR TALUK, NOW RESIDING AT ENGINEERING COLLEGE ROAD, AKATHETHARA (PO),PALAKKAD TALUK, PALAKKAD DISTRICT, PIN 678 004. BY SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE, BY ADV. SRI.S.SUJIN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/08/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.21644/2010 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF I.A.866/2010. P2: COPY OF THE ORDER DTD. 16/06/2010 IN I.A.NO.866/2010 IN O.S.NO.68/2009 OF THE COURT OF THE MUNSIFF, CHITTUR. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOMAS P JOSEPH, J. ---------------------------------------- W.P(C).No.21644 of 2010 --------------------------------------- Dated this 22nd day of August, 2011 JUDGMENT Petitioners are the defendants in O.S.No.68 of 2009 of the court of learned Munsiff, Chittur. In that suit an ex parte decree for recovery of possession of 5 cents and residential building was passed in favour of the respondent on 14.01.2010. That was followed by petitioners filing an application to set aside the ex parte decree. That application was dismissed for default on 24.03.2010. Following that, petitioners filed I.A.No.866 of 2010 (in O.S.No.68 of 2009) for restoration of the application to set aside the ex parte decree. That application was dismissed by the learned Munsiff as per Ext.P2, order holding that there was no sufficient cause for absence of petitioners when the application to set aside the ex parte decree was taken up for hearing. Ext.P2, order is under challenge. 2. Learned counsel submitted that petitioners may be given an opportunity to prosecute I.A.No.339 of 2010 to set aside the ex parte decree. 3. Learned counsel for respondent points out that there is no justifiable reason for the absence of petitioners in the trial W.P(C).No.21644 of 2010 -: 2 :- court. Learned counsel also pointed out that when an ex parte decree was passed against petitioners, in the normal course they would and should have been more vigilant with the application to set aside the ex parte decree and if they were vigilant, that application would not have been dismissed for default. 4. I have gone through Ext.P2, order. The reason stated for restoration of I.A.No.339 of 2010 is that I.A.No.866 of 2010 was posted on 24.03.2010 for evidence, the first petitioner was looking after the conduct of the case but it happened that he could not contact the counsel and thus, I.A.No.339 of 2010 happened to be dismissed. 5. I must keep in mind that I.A.No.866 of 2010 was filed within 30 days from the date of dismissal of I.A.No.339 of 2010. Normally cases are to be decided on merit. True, if there is contumacious negligence or gross latches on the part of a party, he should suffer for that. But in this case as aforesaid it is within the period of limitation that the application is filed. I am inclined to think that petitioners have shown sufficient cause for non appearance when I.A.No.339 of 2010 was dismissed. Hence I am inclined to allow this petition. W.P(C).No.21644 of 2010 -: 3 :- Resultantly this petition is allowed. Ext.P2, order is set aside. I.A.No.866 of 2010 (in O.S.No.68 of 2009 in the Court of learned Munsiff, Chittur) is allowed and order on I.A.No.339 of 2010 is restored to file. Learned Munsiff shall dispose of I.A.No.339 of 2010 as provided under law after giving opportunity to both sides to adduce evidence in respect of their respective contentions. Parties shall appear in the court below on 20.09.2011. (THOMAS P JOSEPH, JUDGE) Sbna/-