IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 27TH JULY 2010 / 5TH SRAVANA 1932 WP(C).NO. 7106 OF 2010(O) --------------------------------------- OS.1383/2005 OF II ADDL.M.C.,TRIVANDRUM .................... PETITIONER(S): ---------------------- 1. SREEKANTHAN, RESIDING AT AKSHAYA, AGED 47 YEARS, VIJAYA LANE, NEAR ANCHUMUKKUVAYAL, DEVI TEMPLE, MUTTADA P.O., THIRUVANANTHAPURAM. 2. V.JAYAPRAKASH, RESIDING AT HAMSADWANI, AGED 48 YEARS, VIJAYA LANE, NEAR ANCHUMUKKUVAYAL, DEVI TEMPLE, MUTTADA P.O., THIRUVANANTHAPURAM. 3. RAMANI, AGED 45 YEARS, RESIDING AT PUNARTHAM, VIJAYA LANE, NEAR ANCHUMUKKUVAYAL, DEVI TEMPLE, MUTTADA P.O, THIRUVANANTHAPURAM. BY ADV. SRI.M.R.ANANDAKUTTAN SMT.M.A.ZOHRA SRI.R.S.MADHU SRI.MAHESH ANANDAKUTTAN RESPONDENT(S): ------------------------ PRABHA, D/O.PONNAMMA, AGED 60 YEARS, RESIDING AT PRIYA, K.P.14/523, MUTTADA (P.O.), KUDAPPANAKKUNNU VILLAGE, THIRUVANANTHAPURAM. ADV. SRI.M.SREEKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF PLAINT IN O.S. NO.1383 OF 2005 ON THE FILE OF THE MUNSIFF'S COURT,THIRUVANANTHAPURAM. EXHIBIT P2 TRUE COPY OF EX PARTE JUDGMENT DATED 7.7.2006 O.S. NO.1383 OF 2005. EXHHIBIT P3 TRUE COPY OF I.A. NO.10075 OF 2007 IN O.S. NO.1383 OF 2005. EXHIBIT P4 TRUE COPY OF I.A. NO.10073 OF 2007 IN O.S. NO.1383 OF 2005. EXHIBIT P5 TRUE COPY OF COMMON ORDER DATED 22.5.2009 IN I.A. NOS.10073 AND 10075 O 207 IN O.S. NO.1383 OF 2005. EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 20.1.2010 IN C.M.A. NO.60 OF 2009 OF THE DISTRICT COURT, THIRUVANANTHAPURAM. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) No.7106 of 2010 ==================================== Dated this the 27th day of July, 2010 J U D G M E N T Writ Petition is in challenge of Ext.P6, judgment of the court of learned District Judge, Thiruvananthapuram in C.M.A. No.60 of 2009 confirming order passed by the learned Additional Munsiff-II, Thiruvananthapuram on I.A.Nos.10073 and 10075 of 2007 in O.S. No.1383 of 2005. Courts below have refused to condone delay and set aside the ex parte decree passed against petitioners-defendant Nos.2 to 4. 2. Case started with respondent filing Ext.P1, plaint claiming that she is the owner in possession of plaint A schedule and using plaint B schedule pathway for access to plaint A schedule and alleging that petitioners and defendant No.1 are trespassed into the plaint B schedule over which they have no manner of right and obstructed her user of the way. She prayed for a decree for injunction to restrain petitioners and defendant No.1 from trespassing into and taking vehicles through plaint B schedule. According to the respondent, petitioners are engaged in real estate business and in connection with their activities are W.P(C) No.7106 of 2010 -: 2 :- taking heavy vehicles through plaint B schedule pathway, plaint B schedule is a private way belonging to her and intended to have access to plaint A schedule. There was an application for temporary injunction in the above lines. Petitioners appeared through Advocate C.R. Sudheesh and filed counter to the application for injunction. Thereafter they did not turn up. Ultimately petitioners were set ex parte and that was followed by an ex parte decree on 07.07.2006. Petitioners filed I.A.Nos.10075 and 10073 of 2007 to set aside the ex parte decree passed against them with a prayer to condone the delay of 492 days. They stated that after filing counter to the application for injunction their counsel (Advocate C.R. Sudheesh) told them that they need appear only as and when instructed. But they did not receive any instruction and learnt about the ex parte decree only when their access through plaint B schedule was obstructed by the respondent on the strength of the decree. 3. Respondent opposed the applications contending that reasons stated for condoning the delay are not correct and there is no sufficient cause made out to condone the delay or set aside the ex parte decree. Respondent examined the Advocate who was appearing for petitioners in the trial court and proved W.P(C) No.7106 of 2010 -: 3 :- Exts.X1 to X4. From that evidence trial court found that reason stated by petitioners is not correct and that the ex parte decree cannot be set aside. That order has been confirmed by the learned District Judge, Thiruvananthapuram in C.M.A. No.60 of 2009 which is under challenge in this Writ Petition. It is contended by learned counsel for petitioners that plaint B schedule is the only access for petitioners and that the decree prevents them from gaining access to their respective properties. It is also contended that finding of the courts below that no sufficient cause is made out cannot be sustained. Learned counsel placed on reliance on the decision in State of Kerala v. Havea Combines (2009 [1] KLT 451) to support her argument that mistaken advice though may not always be sufficient cause for condoning delay, question would depend upon facts of the case. Learned counsel for respondent supported finding of the courts below. 4. Discretionary jurisdiction to condone delay would arise only when sufficient cause is shown. In case sufficient cause is not shown question of exercising discretionary jurisdiction does not arise (See Ramlal v. Rewa Coalfields Ltd. (AIR 1962 SC 361). W.P(C) No.7106 of 2010 -: 4 :- 5. Question is whether petitioners have shown sufficient cause to condone the delay and for absence in court. Evidence of counsel for petitioners and Exts.X1 to X4 show that counsel had sent registered letter to the petitioners. That letter was served on petitioners on 07.06.2006. Though there was representation on behalf of petitioners that written statement was filed on 16.02.2006 when the case was taken on 27.03.2006 no written statement was seen filed and then the case was posted for evidence on 17.06.2006 and then to 03.07.2006. Ex parte decree was passed on 07.07.2006. As per letter sent by counsel to the petitioners the former wanted the latter to meet him in his office. But there is no case for petitioners that they did so. They claimed that they had no information about the case from the counsel and learnt about ex parte decree only when they were obstructed by the respondent while using plaint B schedule pathway. That statement is proved to be incorrect. The Supreme Court in Pundik J.Patil v. Executive Engineer (2009 [1] KLT SN 25 (Case No.26) has stated that when the reason stated for condonation of delay is found to be not true court shall not allow the application on the incorrect statement. This Court in Abdul Khader v. Suburban Chit Funds (P) Ltd. (2006 [1] KLT W.P(C) No.7106 of 2010 -: 5 :- 749) stated that contumacious lethargy in the conduct of cases is not to be condoned. Parties shall not be under the impression that any laches on their part would be condoned by any of the superior courts. Having regard to the facts and circumstances of the case I am not persuaded to think that courts below were wrong in entering a finding that no sufficient cause is made out to condone the delay and set aside the ex parte decree. Writ Petition fails. It is dismissed. THOMAS P. JOSEPH, JUDGE. vsv