IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 5TH OCTOBER 2009 / 13TH ASWINA 1931 WP(C).No. 34533 of 2008(J) -------------------------- CMA.56/2007 of ADDL. DISTRICT COURT, PATHANAMTHITTA OS.351/2000 of M.C., PATHANAMTHITTA .................... PETITIONER(S): 2nd DEFENDANT --------------- CHANDRAMATHY AMMA, W/O. VASUDEVAN PILLAI, CHANDRAVILASATHU VEEDU, ARATTUPUZHA VILLAGE, BY ADV. SRI.K.HARILAL SRI.BINDU SREEKUMAR RESPONDENT(S): PLAINTIFF --------------- BIJI GEORGE, S/O. CHACKO GEORGE, THANUVELIL VEEDU, ARATTUPUZHA MURI, ARATTUPUZHA VILLAGE. ADV. SRI.ISSAC NINAN SRI.T.KURIAKOSE PETER SRI.T.K.RAJESHKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT Counsel for the petitioner is absent. Counsel for the respondents is ready. The writ petition is dismissed for default. 5.10.2009. Sd/- P.Q. Barkath Ali, Judge. -/true copy/- P.S. to Judge. P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - W.P.(C).No.34533 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of October, 2009 ORDER This is a writ petition under Article 227 of Constitution challenging Ext.P2 order dated 12-7-2007 of Munsiff Court, Pathanamthitta in I.A.No.930/2006 and 931/2006 in O.S.No.351/2000 dismissing the said petitions for condonation of delay and for setting aside the ex parte decree which is confirmed in appeal by the Additional District Judge, Pathanamthitta by judgment in C.M.A.No.56/2007 dated August 22, 2008. 2. The facts in brief are these : The respondent in this writ petition filed O.S.No.351/2000 before the Munsiff Court, Pathanamthitta against the petitioner and her husband. The suit was one for declaration of easementary right of way by necessity, recovery of possession and injunction. Deceased husband of the petitioner was the first defendant in the original suit and the first petitioner in the above mentioned in I.As. The petitioner and her husband entered appearance and filed written statement. Later the suit was decreed ex parte due to the absence of the writ petitioner and her husband. On coming to know about the ex parte decree, the writ petitioner and her husband filed the above mentioned I.As. to condone the delay and to set aside the ex parte decree . The learned Munsiff dismissed the above said I.As. by Ext.P2 order dated 12-07-2007. On appeal by the petitioner, the Additional District Court , Pathanamthitta took evidence in that matter and dismissed the said appeal by Ext.P6 judgment dated 22-08-2008. Now the petitioner who is the second defendant in the suit has challenged the impugned order of the Munsiff which is confirmed in appeal in this writ petition. 3. Counsel for the revision petitioner argued that petitioner and her husband are aged persons and were laid up when the case was posted in the list and that therefore the impugned order of the Munsiff dismissing the above mentioned I.A.s in the suit may be set aside and the ex parte decree passed against the petitioner and her husband may be set aside. 4. Counsel for the respondent would argue that the trial court as well as the lower appellate court found that there was no sufficient ground to excuse the delay occurred in filing the appeal and that therefore the writ petition may be dismissed, 5. On hearing the submissions made by the counsel for both parties and on going through the records and in the nature of the contentions raised by the petitioner and her deceased husband in the interest of justice, I feel that the ex parte decree against the defendants can be set aside and the petitioner should be given an opportunity to contest the claim on merits. But there is some laches on the part of the petitioner which can be compensated with cost. In the result, this writ petition will be allowed on payment of cost of Rs. 1,000/- to the respondent's counsel on or before 25/11/2009. On such payment, this writ petition will be allowed. Consequently, the impugned order of the Munsiff will be set aside and the ex parte decree will be set aside and I.A.Nos. 930/2006 and 931/2006 of O.S.No.351/2000 will be allowed and the suit will be restored to file, failing which the writ petition will be dismissed. For payment of cost to 25/11/2009. P.Q.BARKATH ALI JUDGE sv. P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - W.P.(C).No.34533 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of November, 2009 JUDGMENT Cost paid. Memo is filed. Writ petition is allowed. The impugned order of the Munsiff is set aside. I.A.Nos. 930/2006 and 931/2006 in O.S.No.351/2000 are allowed. The ex parte decree passed against the writ petitioner is set aside. The suit is restored to file. The suit is of the year 2000. Therefore, the learned Munsiff is directed to dispose of the suit as early as possible, but not later than six months from the date of receipt of the copy of this judgment. Both the parties shall appear before the trial court on 21-12-2009. P.Q.BARKATH ALI JUDGE sv. Cost paid . Memo filed. Writ petition is allowed. The impugned order of the Munsiff is set aside. I.A.Nos. 930/2006 and 931/2006 in O.S.No.351/2000 are allowed. The ex parte decree passed against the writ petitioner is set aside. The suit is restored to file. The suit is of the year 2000, therefore, the learned Munsiff is directed to dispose of the suit as early as possible, but not later than six months from the date of receipt of the copy of this judgment. Both the parties shall appear before the trial court on 21-12-2009.